Opinion 91-143

December 5, 1991

Digest:         A part-time judge, who is a partner in a law firm, should not preside over matters handled by a former associate of that firm for a two-year period running from the date the former associate leaves employment.

Rules:          22 NYCRR 100.3(c) and 100.3(d).

Opinion:

         A part-time judge, who is a partner in a law firm, inquires whether the judge may preside over matters handled by a former associate of the law firm, who was employed by the firm for one year. The matters which the former associate is handling are not related to matters handled by the judge's law firm nor do they relate to present or former clients of the law firm.

         Section 100.3(c) of the Rules of the Chief Administrator of the Courts provides that “a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned.” This rule requires the judge to avoid impropriety as well as its appearance. Notwithstanding that the associate was employed at the firm for only a year, a judge's impartiality might be questioned for presiding over matters handled by a former attorney recently associated with the judge’s law firm.

         Therefore the judge, for two years, must disclose the prior relationship, and should recuse himself or herself unless disqualification is remitted in accordance with the procedures set forth in section 100.3(d) of the Rules of the Chief Administrator. See Corradino v. Corradino, 48 N.Y.2d 894 (1979). Section 100.3(d) provides:

A judge disqualified by the terms of subparagraph (c)(1)(iii), (iv) or (v) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disquatification. If, based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys, independently of the judge’s participation, all agree that the judge’s relationship is immaterial or that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.

         Of course the judge should in any event recuse himself or herself if the judge doubts that the judge can be impartial in such a case.