Opinion 92-54

June 18, 1992

NOTE: Please consult Joint Opinion 08-171/08-174 before relying on this opinion. To the extent that this opinion is inconsistent with Joint Opinion 08-171/08-174 regarding a judge's disclosure/recusal obligations when his/her personal attorney or his/her personal attorney's partners and associates appear in the judge's court, it is overruled.

Digest:         A judge may permit his or her prior private attorney to appear before the judge if more than two years have passed since the representation, and if the judge has no doubt about his or her impartiality. The judge should disclose the relationship to the parties and may preside if they consent to the judge’s hearing the matter, or if the judge determines that the objection is frivolous or without merit.

Rules:          22 NYCRR 100.3(C)

Opinion:

         A part-time judge asks whether the judge should preside where the town attorney appears, when the town attorney and his partner have represented the judge in the past before the Judicial Conduct Commission and in private legal matters.

         When lawyers who previously have represented judges in personal legal matters appear, the Committee has advised that if the legal representation was within the previous two years, the judge must recuse himself or herself (Opinion 92-31). If the representation was more than two years ago, the judge may preside if the judge feels that he or she can be impartial. The judge should consider all relevant factors to determine if disqualification is the proper course, including the nature of the instant proceeding, the nature of the prior representation by the attorney, and its frequency and duration, the length of time since the last representation, the amount of work done for the judge by the attorney and the amount of the fee, whether the representation was routine or technical or involved the morality of the judge’s conduct, whether there exists a social relationship between the judge and the judge’s former attorney, and whether there are any special circumstances creating a likely appearance of impropriety. (Joint Opinion 88-120, 88-125).

         If the judge does not disqualify himself or herself, based on the particular facts, then the judge must reveal the prior relationship with the attorney on the record to the parties. If any party objects, the judge should seriously consider disqualifying himself or herself, and should do so, unless the judge thinks that the objection is frivolous, in bad faith, or wholly without merit.