Opinion 93-09

January 28, 1993

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 the judge’s retired father’s former law firm to appear before him or her. The fact that the firm previously represented the judge personally must be disclosed to counsel and parties, and the judge may preside if consent is given, or if the objection to the judge’s presiding is determined by the judge to be frivolous or without merit. If the firm is considered by the judge to be his or her attorney, the judge must recuse himself or herself.

Rules:          22 NYCRR 100.3©.

Opinion:

         A full-time judge, whose father was a law partner in a large, active firm in the judge’s geographic area and from which firm the father now has retired (also removing his name from that of the firm), inquires concerning future judicial conduct regarding the firm since the father’s retirement. Prior to the retirement of the father, the judge recused self from hearing any matter in which the firm appeared.

         The inquiring judge states that during the period before the father’s retirement the judge and members of the judge’s immediate family hired that firm to represent them in their legal matters, the last occasion being approximately six years ago. The judge further advises that the judge probably would hire the same firm to represent the judge in the future in the event the judge should require legal representation.

         The judge further advises that with regard to any attorney appearing before the judge who is a former member of that firm, it is the judge’s practice to write a letter to all counsel involved, disclosing the prior relationship, directing such counsel to inform their clients of that relationship, and to inquire whether they or their clients desired the judge’s recusal; the judge abides by their wishes in that regard.

         Although, the judge or his family were last represented last by the father’s former firm six years ago, it is unclear from the inquiry whether the judge still considers the firm to be the judge’s lawyers. If the judge does consider the firm to be the judge’s lawyers, the judge should continue to invoke recusal as when the father was a member of the firm. On the other hand, if the judge no longer considers the firm to be the judge’s lawyers, the judge should proceed as indicated hereafter.

         To avoid any appearance of impropriety regarding the father being a former member of the firm, the judge must reveal on the record to the parties the prior professional relationship with the firm. If any party objects, the judge should seriously consider disqualification and should do so unless the judge thinks the objection frivolous, in bad faith, or wholly without merit. See also previous Opinions 88-68, Vol. II, Joint Opinion 88-120, 88-125, Vol. II, 88-153, Vol. III, 90-56, Vol. V, 90-169, Vol VI, 90-179, Vol VI, 90-122, Vol. VI, 91-10, Vol VII, 92-31, Vol. IX, and 92-54, Vol. IX. In Opinion 92-54, the Committee stated as follows:

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.

         Concerning any former member or members of the judge’s father’s firm, if he or she, as a member of that firm, personally represented the judge in the past, the judge likewise must disclose the representation.