Opinion 92-14

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:         (1) A part-time acting judge who worked for the Legal Aid Society is disqualified from hearing those cases in which the judge participated while a Legal Aid Society attorney; (2) a regular part-time judge in the same court, who did not work previously for the Legal Aid Society, is not disqualified from hearing any Legal Aid Society cases; 3) if a witness was a former client of the acting judge, the judge may sit in a jury case, but should offer to disqualify himself or herself in a non-jury case, and should disclose the relationship on the record in either case; 4) the judge should not preside where a former client is a litigant, unless more than two years have passed, after which the judge for a reasonable time should disclose the matter on the record.

Rules:          22 NYCRR 100.3(c).

Opinion:

         Two part-time judges of a two-judge court jointly ask whether the fact that one of the judges, who recently became acting judge of the court, previously served as an attorney for the Legal Aid Society, requires either or both of the judges to recuse themselves in cases in which litigants are represented by Legal Aid Society attorneys?

         The Committee is of the opinion that, in the absence of other extraneous factors, the regular judge of the court (who did not work for the Legal Aid Society) may preside over any case involving that Society. The fact that the acting judge formerly was a staff attorney with the Society in no way affects the ability of the regular judge of the court to preside over any matter.

         The acting judge (who was a staff attorney for the Legal Aid Society) also may preside over any case in which the Society represents a party, except a case in which the acting judge personally participated as a staff attorney, or about which the judge acquired information as a staff attorney.

         If a former client of the acting judge appears as a witness in a case before the judge, the judge may preside if it is a jury case. In a non-jury case, if the judge knows of the witness's appearance in advance, the judge should offer to disqualify himself or herself. If the judge did not know in advance that this witness was to appear, the judge may continue to sit. In either case, the judge should disclose the relationship with the former client on the record.

         If a litigant before the acting judge is a former client of the judge, the judge should disqualify himself or herself, subject to remittal, if the representation was within the last two years. If the representation was more than two years ago, the judge should make full disclosure of the relationship 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 in bad faith or wholly without merit.