Opinion 93-50

April 29, 1993

Digest:         A judge who has recused himself or herself pursuant to the holding in Opinion 92-34, Vol. IX, may now preside over matters brought before the court by a particular attorney, since all prior obstacles between the judge and the subject attorney have been removed. Whether disclosure should continue and for what period of time are matters within the judge's discretion.

Rules:          22 NYCRR 100.2(a)(b); 22 NYCRR 100.3(C)(i)

Opinion:

         In Opinion 92-34, Vol. IX, dated March 16, 1992, this Committee stated that a judge “...should not preside over matters in which a law firm appears which had terminated as unsuccessful the employment of the judge's spouse four years ago, a partner of which firm abstained from voting on the judge's qualifications before the bar association at the judge's request, and about which firm the judge is alleged to have made negative remarks.” Since that opinion was rendered, the judge and the lawyer in question, who has moved to another law firm, have established a state of cordial relations, and both now feel that this judge need no longer be disqualified from hearing matters involving the subject attorney or former members of the law firm, which has since disbanded.

         This judge now asks three questions, namely; 1) may the judge preside over the subject lawyer's matters; 2) what disclosure, if any, need this judge make to any of the subject lawyer's opposing counsel; and 3) if disclosure is required, for what period of time should it continue?

         Section 100.2 of the Rules of the Chief Administrator, states, in part;

(a) A judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(b) No judge shall allow his or her family, social, or other relationship to influence his judicial conduct or judgment.

         Section 100.3(c)(1) of the Rules of the Chief Administrator, states:

(1)A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably-be-questioned ....

         The scenario between the two main parties herein, the judge and the subject attorney, has altered considerably from the time of the first inquiry, and the parties now seem to have a working relationship. The original law firm no longer exists, the judge's spouse has been gainfully employed elsewhere for five years and has no connection with the dissolved law firm or the lawyer in question, and the latter and the judge have reached a rapprochement.

         So long as the judge feels that he or she can be impartial while hearing matters brought before the judge by the subject lawyer, the judge need no longer recuse himself or herself. In all matters involving the subject lawyer, it is in the judge's discretion whether affirmatively to disclose the prior disqualification to other parties. The period of such disclosure, if any, also is within the judge's discretion.