Opinion 94-11

March 10, 1994

Digest:         A judge who is a party respondent in an article 78 proceeding in which the Office of Court Administration is moving for leave to appeal and in which several attorneys are moving to be granted leave for their clients to appear amicus curiae or to intervene (1) must recuse himself/herself from cases involving attorneys with whom the judge has consulted or who participated with the judge regarding the article 78 proceeding, but (2) is not required to recuse himself/herself where, to the judge's knowledge, the attorney has had no participation in the amicus representation.

Rule:            22 NYCRR 100.3(c), (d)

Opinion:

         A full-time judge who is a party respondent in an article 78 proceeding in which the Office of Court Administration (OCA) is moving in the Appellate Division for leave to appeal to the Court of Appeals, and in which several attorneys are moving to be granted leave for their clients to appear as amicus curiae or to intervene, advises that several of these attorneys have consulted the judge about the proceeding and that the judge currently has a motion pending before him/her where the attorney for one of the parties is also the attorney for the proposed amicus or intervenor.

         The judge inquires whether he/she must recuse himself/herself or make a disclosure of the relationship if an attorney for a proposed amicus physically appears before the judge or if the attorney's papers are submitted and no appearance is made before the Court. The judge also inquires as to what course should be followed if the attorney appearing before the judge has not worked on the amicus or intervenor action but another member of that attorney's firm or organization has.

         If a judge believes that he/she cannot be impartial, the judge should disqualify himself/herself for as long as the judge feels he/she cannot be impartial. From the facts presented by the inquiring judge, it appears that the attorneys are not representing the judge, but rather clients who appear as "friends of the Court". However, we are of the opinion that any attorney who has consulted with the judge, by telephone, letter, or in person, about the article 78 proceeding has a closer relationship with the judge than would be the case in merely penning an article 78 amicus brief or orally appearing for the amicus. If the judge has discussed the case with an attorney, and there has been consultation or participation, their relationship is akin to an attorney/client relationship and the judge should recuse himself/herself from all cases involving the attorney. The period of recusal should last until the Article 78 proceeding is concluded.

         As the above relationship is only akin to that of an attorney/client relationship, no further disclosure will be required following the expiration of the two-year period.

         If the attorney appearing before the judge works on the article 78 amicus case but has not discussed the matter with the judge, and the judge has no knowledge of any participation by the attorney in the amicus representation, it is our opinion that recusal is not required and no action needs to be taken by the judge since their relationship has not been raised to that of an attorney/client relationship. It is the contact between the attorney and the judge which might create the appearance of impropriety as to the possible existence of a conflict of interest which would necessitate the judge's recusal.

         In each of the above situations, the Committee's opinion is the same whether the attorney in question appears personally before the judge or is merely submitting motion papers.