Opinion 96-114

December 12, 1996

Digest:         Disqualification is not mandated where (1) one of the parties to the litigation has made a complaint against the judge to the State Commission on Judicial Conduct (2) the judge’s law firm had previously represented, in an unrelated matter, a deceased individual indirectly involved in the instant matter.

Rules:          22 NYCRR 100.3(E); Opinions 94-94, 94-71, 94-46, 92-01

Opinion:

         The inquiring part-time judge informs the Committee that 16 years ago the judge’s law firm, in a real estate transaction, represented a now-deceased deponent to a complaint against a defendant in a matter pending before the judge. The judge asks whether recusal is required.

         This Committee has stated that the factors a judge must consider when making a determination regarding disqualification due to an attorney-client relationship with a person involved in litigation, after disclosure of the relationship, include:

- The amount of time that has elapsed since the last representation.

- The nature and duration of the representation.

- The nature of the instant proceeding.

- Special circumstances creating a likely appearance of impropriety. See Opinions 94-71,92-01.

         Sixteen years is well beyond the recommended two year period for disqualification involving former clients articulated in Opinions 94-71 and 92-01. Further, the fact that this representation was for a real estate transaction apparently unrelated to the instant matter, and that the former client is deceased, also support the conclusion that disqualification is not required in the proceeding pending before the judge.

         The judge also inquires if disqualification is required where one of the parties to the litigation has made a complaint against the judge to the State Commission on Judicial Conduct. In Opinions 94-46 and 94-94,t his Committee concluded that, as long as the judge believes that he/she can remain impartial, recusal is not required in a proceeding involving an attorney who has made a complaint against the judge to the Commission on Judicial Conduct. The same standard would apply in this case where the complainant is the party rather than the attorney and, therefore, disqualification is not required.