Opinion 90-122

September 18, 1990

Digest:         A full-time judge may privately hire an attorney who has an active practice in the judge's court, but would have to disqualify himself or herself from any case in which the attorney thereafter appears.

Rules:          22 NYCRR §100.3(c)(1), and 100.5(c)(1).

Opinion:

         A full-time judge who serves as County Court judge, Surrogate and Family Court Judge requests an opinion on the propriety of hiring an attorney to draw the judge’s will and to serve as a co-executor and trustee under the will.

         Relevant facts supplied by the inquirer are as follows. The attorney has no criminal practice and so makes no appearances before the judge in county court; he only appears in Family Court as a law guardian for minors or, occasionally, as assigned counsel for an adult. He does have a very active Surrogate’s Court practice. It is not anticipated that the attorney will do any unrelated work for the judge. All property sold during the judge’s lifetime would be sold to individuals who are represented by counsel. The judge expects to prepare the legal instruments to effect such sales as occur.

         The Rules of the Chief Administrator of the Courts and the Canons of Judicial Ethics require that a judge avoid not only impropriety, but even the appearance of impropriety, and impartially and diligently perform his or her judicial duties. Section 100.3(c) of the Rules of the Chief Administrator states that “a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned,...” Section 100.2 states, inter alia, that “'a judge shall... conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

         A litigant aware of the above-described relationship between the judge and the opposing attorney could reasonably believe that the judge has a great deal of confidence in the opposing counsel and that the judge might adopt the reasoning of that attorney, notwithstanding a superior argument. Public confidence in the integrity and or impartiality of the Judiciary would be in jeopardy. The judge must disqualify himself or herself.

         We note also that §100.5(c)(3) of the Rules of the Chief Administrator compel a judge to manage his or her “investments and other financial interest to minimize” the need for disqualification.