Opinion 95-05

January 19, 1995

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion.

Digest:         A part-time judge who is permitted to practice law may not preside over proceedings involving current clients and may not arraign current, recent or past clients. Unless more than two years have elapsed since the last representation, a judge should disqualify himself or herself where a party before the judge is a former client. If more than two years have elapsed, the judge should make full disclosure on the record and should disqualify himself or herself if any party objects to the judge’s presiding over the proceeding unless the judge believes the objection to be frivolous, in bad faith or wholly without merit.

Rules:          22 NYCRR 100.1; 100.2; 100.3(c), (d)

Opinion:

         A part-time City Court judge who is a practicing attorney inquires whether he or she may appear before a newly-elected County/Family Court judge who, prior to being elected to the bench, wrote letters of complaint to the State Commission on Judicial Conduct about the part-time judge, or, in the alternative, whether the County/Family Court judge must recuse himself or herself from all proceedings in which the part-time judge appears as an attorney.

         The judge also inquires whether he or she may preside over arraignments of clients or former clients.

         A part-time judge may not preside over cases in which a party is a current client and may not arraign recent, past or current clients.

         The Committee has previously addressed the issue of former clients in Opinions 94-71, 92-01, 89-88 and 89-13. As we have stated, if the last representation of the client occurred within two years of the judge ascending to the bench, the judge should disqualify himself or herself (22 NYCRR 100.3[c]) subject to remittal of disqualification if all parties affirmatively consent to the judge presiding over the proceeding (22 NYCRR 100.3[d]).

         If two years have elapsed since the last representation, no recusal is required if the judge believes he or she can be impartial. The judge, nevertheless, should disclose the relationship on the record and should recuse himself or herself if any party objects to the judge continuing to preside over the proceeding unless the judge believes, under all circumstances, that the objection is frivolous, in bad faith or wholly without merit. Circumstances to be considered in making that determination include but are not limited to the following: the amount of time that has elapsed since the last representation, the nature and duration of the representation, the nature of the pending proceeding, and whether there are any special circumstances creating likely appearance of impropriety.

         We decline to respond to the inquiry as to whether the County/Family Court judge must recuse himself or herself from matters in which the part-time judge is appearing as an attorney as the Committee renders opinions only to judges or judicial candidates who are faced with ethical issue regarding their own judicial conduct.