Opinion 89-29

April 4, 1989

Topic:          Disqualification; appearance by an attorney who represents or represented the judge’s minor son.

Digest:         A judge must disclose the fact on the record where an attorney who appears before him represents or represented the judge’s minor son. Upon consent of the parties appearing in the action, the judge may continue to preside in the exercise of his or her discretion.

Rules:          22 NYCRR 100.3(C)(d)

Opinion:

         A town justice inquires whether the justice must recuse himself from matters in which an attorney who represents or once represented the justice’s minor son appears.

         The Committee has considered a related question previously (see Opinions 88-43, 88-120, 88-153). In Opinion 88-120, where the judge himself had been represented by an attorney, the Committee stated:

Whenever an attorney who appears before a judge has been a counsel to the judge in a personal legal proceeding, the judge need not immediately disqualify himself or herself, unless the judge personally harbors a doubt as to his or her ability to act impartially in the matter. In the absence of such doubt, the judge must consider all relevant factors to determine if disqualification is appropriate, including, but not limited to, the nature of the instant proceeding, the nature of the prior representation by the attorney, as well as its frequency and duration, the length of time since the last representation (perhaps using the two-year period that appears in 22 NYCRR 16.1 of the Rules of the Chief Judge as a guide), ... whether there exists a social relationship between the judge and the ... attorney, and whether there are any special circumstances creating a likely appearance of impropriety. If, weighing all circumstances, the judge does not feel that disqualification is required, the judge, nevertheless, should disclose the relationship to both parties and may preside over the case only upon consent of both parties. Where only one party appears, and the other party defaults, the judge, upon making disclosure to and upon obtaining consent of the appearing party, may preside.

         If sufficient time has passed since the representation of the justice’s son by the attorney, the following guidelines expressed by the Committee in Opinion 88-153 would apply:

The judge should disqualify himself in these matters for as long as the judge feels that he cannot be impartial. If and when the judge concludes that he would be impartial and considering all relevant factors, including but not limited to the length of time since the last representation (perhaps using the two year period of 22 NYCRR 26.1 of the Rules of the Chief Judge as a guide) the judge chooses not to disqualify himself, then he must reveal on the record his prior relationship with the attorneys and with the insurance carrier. If any party objects, the judge should seriously consider disqualifying himself, and should do so, unless he thinks the objection is frivolous, in bad faith, or is wholly without merit. To the extent that this opinion varies from our previous opinions 88-143 and 88-120 concerning the recusal of judges, this opinion shall be deemed a modification of these opinions.

         This reasoning also would apply to a situation where the attorney represented a member of the judge's family as well as to a situation where the attorney represented the judge.