Opinion 92-01

May 7, 1992

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion.

Digest:         A judge should disqualify himself or herself where a party before the judge is a former client, if the representation was within the past two years. If more than two years ago, the judge should make full disclosure on the record, and should disqualify himself or herself if any party objects to the judge's presiding unless the judge believes the objection to be frivolous, in bad faith or wholly without merit.

Rules:          22 NYCRR 100.3(c)(d).

Opinion:

         A part-time lawyer-judge inquires whether disqualification is mandatory if the judge recognizes a party appearing before the judge to be a former client in an unrelated matter.

         If the last representation of the client by the attorney-judge occurred within the past two years, the judge should disqualify himself or herself (22 NYCRR 100.3[c]), subject to remittal of disqualification, if all parties affirmatively consent to the judge's presiding (22 NYCRR 100.3[d]).

         If two years have elapsed since the last representation, the judge need not recuse himself or herself provided that the judge believes that he or she can be impartial. Nevertheless, the judge should disclose the relationship on the record, and should recuse himself or herself if any party objects to the judge's continuing to preside, unless the judge believes, under all the circumstances, that the objection is frivolous, in bad faith or wholly without merit. Circumstances to be considered in making that determination include, but are not limited to, the amount of time that has elapsed since the last representation, and the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety.