Opinion 95-104

September 21, 1995

Digest:         A judge is required to recuse himself/herself in matters which a party is represented by a lawyer who holds a mortgage on the judge's property.

Rule:            22 NYCRR 100.3, (c)(1); 100.5 (c)(1)

Opinion:

         A full-time judge inquires whether he/she must recuse himself/herself in every case in which a party is represented by an attorney who holds the mortgage on certain property owned by the judge and the judge's spouse. The judge also inquires whether disclosure of this financial relationship is necessary.

         Section 100.3 (c)(1) of the Rules of the Chief Administrator states that disqualification is required in any proceeding where the judge's "impartiality might reasonably be questioned". Section 100.5 (c)(1) of the Rules of the Chief Administrator states that "a judge shall refrain from financial dealing [that] involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he or she serves" (see also, Canon 5 [c][1] of the Code of Judicial Conduct). In Opinion 92-126, the committee expressed the view that a judge was not required to recuse himself or herself in matters which involved the bank which held the mortgage on the judge's home. We noted that recusal would be required if the judge felt that he or she could not be fair and impartial. In Opinion 90-200, the Committee stated that an "ethics question" would arise if an individual holding a mortgage on a judge's property were to appear before that judge.

         The present case is distinguished by the fact that the mortgagee is a person, rather than an institution, and by the fact that the mortgaged property (an apartment building) is not the judge's residence, and thus presumably constitutes investment property. The judge also advises that "the mortgage contains a provision for periodic review/re-organization of the interest rate." Under these circumstances, the Committee believes that the judge's impartiality might reasonably be questioned, and disqualification is required (see also, Opinion 92-110 [recusal required where attorney was receiver who collected rent from a judge]; 93-91 [judge should not rent property to attorney likely to appear in his/her court]).