Opinion 94-33

April 28, 1994

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 part-time judge should not preside over cases in which the law firm appearing is representing the judge in an adoption proceeding, even if the matters involve “pleas by mail.”

Rules:          22 NYCRR 100.2(c), Opinion 93-09, Vol. X

Opinion:

         A part-time judge who is being represented in an adoption proceeding by a partner in a law firm, inquires about the length of time during which the judge should not preside over cases handled by the attorney, the attorney’s partners and/or associates, and for what period thereafter disclosure of the relationship is necessary. The question also is asked whether the same standards would apply in “plea by mail” situations in which recommendations for disposition consented to by the prosecutor are presented to the court.

         The committee has answered similar questions in the past. The judge is directed to Opinion 93-09, Volume X, which makes reference to almost all of the prior opinions on the issue, and which we enclose. In essence, it is the position of the Committee that there should be recusal for the duration of the representation of the judge by the law firm and for a period of two years thereafter.

         Following the two year period, the judge may preside, depending on the evaluation of those factors specified in Opinion 92-54, as quoted in Opinion 93-09. Where the judge does not disqualify himself or herself, there must be disclosure as delineated in Opinion 93-09.

         While the “plea by mail” situation would appear to be in a different category because such dispositions are consented to by the district attorney, the fact that the judge apparently imposes a judicial imprimatur by adopting those agreements could give rise to an appearance of impropriety to those unfamiliar with the legal import of such pleas. But in as much as judicial consent is sought, and the judge is acting in a judicial capacity in acceding to the plea, the same standards should apply.