Opinion 89-31

April 4, 1989

Topic:          Period of time a judge should continue to recuse himself or herself from matters coming before the judge, wherein the judge’s former law partner is attorney for a party.

Digest:         Depending on all of the facts and circumstances of their prior relationship as partners, a judge should consider continued recusal from cases wherein the judge’s former partner represents a party until such time as there is no appearance of impropriety.

Rules:          Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979); 22 NYCRR 100.3(C); Opinion 88-153 (Vol. V).

Opinion:

          A judge inquires how long the judge should continue recusal from cases in which the judge’s former law partner represents a party.

         The judge dissolved the former two-attorney firm upon election to a county-wide court. Thereafter, and for a period of approximately six years to the present time, the judge consistently has invoked recusal from any consideration of matters which the former partner maintained in the judge’s court.

         During their partnership, the judge made loans to the partner and in the dissolution of the partnership also sold law office property to the partner and received a mortgage as security. The total indebtedness was paid and no financial obligation or relationship now exists between them.

         The judge now requests an opinion as to how much longer the judge should continue to practice recusal from matters wherein the former partner appears.

         The relationship of law partners, especially in a small firm, involves not only a close professional relationship but a personal one as well. Frequently, the social relationship survives the professional one. This may be so, especially in situations as here where the court is located in a small city, or in a suburban or rural area. In these circumstances, it might create the appearance of impropriety for the former partner appear before the judge. Thus, it is difficult for the committee to establish a precise time frame for the judge to continue recusal in these matters.

         In Opinion 88-153, a judge had previously been represented in a personal injury action by an attorney who later appeared before the judge in a litigated matter. There, the Committee held that the judge should be disqualified for as long as the judge feels that he cannot be impartial. If and when the judge concludes he would be impartial, considering all the relevant factors, the judge must reveal on the record the prior relationship with the attorney and should invoke recusal if requested, unless the objection is frivolous or in bad faith. Opinion 88-153 (Vol. V).

         The judge-attorney relationship here, however, is much closer - that of partners in a two-attorney firm in a non-metropolitan area. If the judge presides over a case brought by the former partner as an attorney for a party, it might create an appearance of impropriety for some time. Since this is a multi-judge county, recusal for a reasonable period of time would not place an undue burden on judicial administration.

         However, “[i]t is impossible to fix a specific number of years to the period of disqualification. The length of the period will depend on whether an objective, disinterested observer would question the judge’s impartiality. That in turn will depend on the circumstances...” NYSBA Comm. on Prof. Ethics, Op. 574 (4/18/86).

         The judge, therefore, should invoke recusal for such period of time which in his judgment, under all of the circumstances, will avoid the appearance of impropriety. Thereafter, the judge should make known to counsel the prior partnership in all cases in which the former partner appears. If any party objects, the judge should seriously consider recusal, and should invoke recusal unless the judge thinks that the objection is frivolous, in bad faith, or is wholly without merit.

         We note that in Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979), the Court of Appeals said:

We would also note that, because the attorney for the petitioner husband was associated with the same law firm as was the Trial Judge prior to her designation to the Bench, the respondent wife asked the Judge to recuse herself. That application was denied. Though there is no canon of judicial ethics which specifically requires disqualification under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality.