Opinion 96-91
December 12,1996
Please Note: This opinion has been modified by Opinion 20-110, which states: “To the extent Opinion 96-91 suggests the disclosure obligation ends when ‘the law suit is finally resolved, including the dividing of the fee,’ it is modified to extend the obligation for two years after the lawsuit completely ends, including any division of fees. We further modify Opinion 96-91 to reflect the current standards for mandatory disclosure: the judge must simply disqualify him/herself if any party is appearing without counsel, but he/she otherwise has full discretion to preside, even if a party objects after disclosure.”
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A newly appointed part-time City Court judge (1) is entitled to recover
disbursements and share in legal fees for services rendered in a pending
litigation commenced prior to assuming judicial office. (2) may allow
former co-counsel in the pending law suit to appear before him/her,
provided there is disclosure while the law suit is still pending. In the
event of a good faith objection, recusal is required. (3) may hear cases
that arose while the judge was employed in the Public Defenders office,
provided that the judge was not attorney of record and did not
personally participate in the matter. (4) should recuse himself/herself
from handling matters involving the defendant police officer, while the
action is pending, and for a period of time thereafter if impartiality may
be questioned. (5) may not represent clients in actions against the city.
Rules: 22 NYCRR 100.3 (E); 100.6 (B)(3) Opinions 93-116, 9-68, 93-62,93-44, 92-114, 92-01, 89-134, 89-88.
Opinion:
A newly-appointed part-time City Court judge asks a series of questions related to the judge’s practice of law. The questions arise primarily out of a personal injury law suit pending in the Supreme Court, which had been previously instituted by the judge on behalf of a plaintiff against the city and two of its police officers, one of whom is still on the force. Assisting the judge in that case was an attorney who served as the judge’s superior in the county Public Defender’s office where the judge had also worked on a part-time basis. That attorney has now been substituted as the attorney-of-record in the personal injury law suit and continues in his capacity as head of the Public Defender’s office. That law suit is a contingent fee matter.
The questions asked by the judge pertain to (1) any entitlement to fees generated in the personal injury action (2) restrictions on the appearance in the judge’s court by the former co-counsel, either as private attorney or as Public Defender (3) appearances before the judge by the defendant police officer and (4) whether the judge may “maintain active litigation against the municipality.”
It is the Committee’s opinion that:
(1) The judge is entitled to recover disbursements, and may share in legal fees for services rendered in the law suit prior to assuming judicial office.
See Opinion 93-44, 89-134.
(2) The attorney now handling the personal injury case (and his present associates) are not barred from appearing before the judge. Disqualification is not mandated in matters in which the former co-counsel appears in the course of private practice or as Public Defender. The judge and the attorney are not law partners nor are they associated in the practice of law so as to trigger the restrictions set forth in section 100.6 (B)(3) of the Rules Governing Judicial Conduct. However, the judge does have a direct pecuniary interest in the successful prosecution of the pending law suit by that judge and the attorney, presumably by agreement between them. Under such circumstances, until the law suit is finally resolved, including the dividing of the fee, the judge should make disclosure and exercise recusal in the event of an objection by a party, unless the judge concludes that such objection is frivolous, made in bad faith, or is wholly without merit. With respect to Public Defender matters that arose while the judge was employed in that office, the judge may preside, provided he/she was not attorney of record and did not personally participate in the case. See Opinion 93-116,93-62, 92-114.
(3) As to the police officer who is a defendant in the pending personal injury action, there should be recusal while the action is pending and for a period of time (perhaps two years) subsequent to the judge’s conclusion of his/her representation of the plaintiff in the action. If the judge then concludes that, given the passage of time and other relevant factors (e.g., the conclusion of that matter), he/she can be considered impartial, the judge should make disclosure and, in the event of an objection, consider recusal unless the objection is frivolous, in bad faith or wholly merit. See e.g., Opinions 92-01,89-88. Of course disclosure is not possible where ex parte applications, (e.g., search warrants) are being made by the police officer. In that circumstance, the judge should seek to have a different City Court judge handle the application, unless an emergency situation is presented and the judge believes he/she can act impartially.
(4) The judge as a private practitioner may not represent clients in actions against the city. See Opinion 93-68.