Joint Opinion 90-169 and 90-183

December 11, 1990

Digest:         A judge may permit the judge's former private attorney and that attorney's law firm to appear before the judge, where five years have passed since the attorney represented the judge in a personal legal matter.

Rules:          22 NYCRR 100.3(d)

Opinion:

         Two judges inquire whether continued recusal or disclosure is necessary in matters involving lawyers and the lawyers' law firms, where the lawyers represented the judges in personal legal matters approximately five years ago. One judge also asks if the judge may now appoint the lawyer and other members of the firm as guardians.

         In Joint Opinion 88-120, 88-125 (Vol. 11), this Committee found that a judge must disclose on the record, where an attorney who appears before the judge represented the judge in a prior personal matter. The Committee found that no fixed time limitation exists on the duty to disclose, but factors to take into account would include the nature of the prior representation by the attorney, and the length of time since the last representation, using a two-year period as a guide.

         Here, as five years have passed since the last, and apparently only representations, and as the representations appear to have involved relatively simple matters, the judges need not continue affirmatively to disclose the connection with the attorneys, nor recuse themselves, if the judges believe that they can be impartial. Of course, however, the judges should not conceal the relationship. Thus, it is ethically proper for the judges, without disclosing, to permit the former personal attorneys and their law firms to appear before the inquiring judges, and the judges may appoint such lawyers as guardians.