Opinion 94-05

March 10, 1994

Digest:         A Surrogate Judge should recuse him/herself where the attorney on the case is a partner or an associate of the judge’s former law firm to avoid the appearance of impropriety, subject to remittal of disqualification by all parties who appear. A two-year period is appropriate.

Rules:          22 NYCRR §100.3(c)

Opinion:

         A newly elected Surrogate judge questions this committee about the period of time the judge should recuse him/herself from matters before that court in which the judge’s former law firm represents a petitioning fiduciary. The judge informs the Committee that there are no financial connections with the law firm and that the separation from the firm occurred when the judge ascended the bench.

         Section 100.3(c) of the Rules of the Chief Administrator of the Courts states the following precept: “a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned.” The rule requires the judge to avoid even the appearance of impropriety. Many Surrogate matters do not involve situations with opposing counsel and so, do not call into play the waiver or consent provided for in §100.3(d) of the Rules.

         Impropriety and its appearance are based on perceptions that are often subjective and therefore must be given wide scope. As this Committee has noted: “[t]he relationship of law partners ... involves not only a close professional relationship but a personal one as well. Frequently the social relationship survives the professional one.” (Opinion 89-31 , Vol. III). Given such circumstances, the inquiring judge’s impartiality might reasonably be put in question. The fact that there will often be no opposing counsel in particular matters does not diminish the impression of an appearance of impropriety.

         It would be difficult, if not impossible to foresee a definitive period of time for disqualification, covering all possible circumstances. As noted by the New York State Bar Association Committee on Professional Ethics, Opinion 574, 4-18-86: “[t]he length of time will depend on whether an objective, disinterested observer would question the judge’s impartiality. That in turn will depend on the circumstances...”

         The judge must disqualify him/herself for the period of time, given the circumstances, when the judge’s impartiality might reasonably be questioned, subject to remittal of disqualification by all parties who appear.

         As to the length of the period during which the judge should exercise recusal, the Committee has, in analogous situations, suggested two years as an appropriate period of time.