Opinion 94-23

March 10, 1994

(See Opinion 94-23(a), supplement to this Opinion)

Digest:         Individual members of a board of judges need not recuse themselves from matters in which members of a law firm representing the board appear. However, if the law firm were to represent the board members individually, then those judges must recuse themselves from matters in which the firm appears. Where a law firm represents a judge as part of a class of judges, and that judge is not named individually in the suit, the judge need not recuse himself or herself from matters in which members of the firm appear.

Rules:          22 NYCRR 100.2; 100.3(c); Opinions 91-10 (Vol. VII); 92-54 (Vol. IX); 92-31 (Vol. IX); 90-197 (Vol. VII); 90-56 (Vol. V); .Joint Opinions 88-120 and 88-125 (Vol. III).

Opinion:

           The president of a board of judges of a city civil court (the “Board”) states that the Board and several individual judges are considering retaining a certain law firm to represent them in a matter pending in federal court. Specifically, the Board and the judges may intervene in an action relating to an alleged violation of the federal Voting Rights Act, which could affect the way such judges are elected in the future.

         The Board wants to know whether retaining the law firm would affect its members’ ability to preside over future unrelated matters in which attorneys from that firm may appear. The Board poses a number of specific questions to the Committee.

         Before addressing the specific questions, the Committee reviews Opinion 92-54 (Vol. IX), which addresses the need for recusal when a judge’s attorney appears before him or her. In that opinion, the Committee stated:

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 (Vol. IX). If the representation was more than two years ago, the judge may preside if the judge feels 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 in the morality of the judge’s conduct, whether there exists a social relationship between the judge and judge’s former attorney, and whether there are any special circumstances creating a likely appearance of impropriety. Joint Opinion 88-120 and 88-125 (Vol. III).

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 things that the objection is frivolous, in bad faith, or wholly without merit.

The Committee now addresses the following, specific questions posed by the Board.

1. Is there any need for recusal if the law firm were retained by the Board.

         Because the law firm would not be representing the judges personally, the individual members of the Board need not recuse themselves if the members of the law firm appear before them. Any other result would hinder the Board’s ability to hire counsel, since such counsel would then be prevented from appearing before a significant number of local judges. It should be noted that the particular court referred to consists of approximately 120 judges.

2. Would the implications be any different if the law firm were retained to represent certain named judges, either alone or along with the Board?

         Yes. A judge should not preside over any case in which either the law firm or a member of the law firm, which is representing the judge individually, appears. Opinion 91-10 (Vol. VII). This issue is addressed in more detail in Opinion 92-54 (Vol. IX), supra.

3. Can specific attorneys working on the federal action in question appear before the judges?

         If the attorneys represented only the Board, and not individual judges, then recusal is not necessary. However, if the attorneys represented individually named judges, those judges should recuse themselves if those attorneys appear before them. 22 NYCRR 100.2; 100.3(c); Opinions 90-197 (Vol. VII); 90-56 (Vol. V).

4. If certain of the judges are named intervenors, appearing on their behalf as well as on behalf of all others similarly situated, will the judges who are not specifically named be under the same constraints (assuming there are any) as the judges who are named?

         No. Judges not individually named are merely members of the class and are thus within the reasoning of 1., above.

         The Committee reserves for further consideration the questions as to the period of recusal, when required, and questions as to compensation of the attorneys.