Opinion 97-85

September 11, 1987

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 lawyer-judge should recuse himself/herself where a party coming before the judge had been a client of the judge's law firm within the preceding two years, subject to remittal of disqualification. If more than two years have elapsed, the judge may preside after full disclosure on the record, and in the absence of a meritorious objection.

Rules:          22 NYCRR 100.3(E), 100.3(F); Opinions 94-71 (Vol. XII); 92-01 (Vol. IX).

Opinion:

         A candidate for town justice, who is associated with a law firm in the town, inquires whether he/she may preside in cases in which a former client of the law firm is a party. In Opinion 94-71 (Vol. XII), citing its previous Opinion 92-01 (Vol. IX), the Committee stated that, where a former client of a part-time judge comes before the judge as a party, the judge's duty to recuse depends on whether the last representation of the client occurred within the two-year period preceding the appearance of the client. The Committee stated:

If the last representation of the client by the attorney-judge occurred within the past two years, the judge should disqualify himself or herself (22 NYCRR [former] 100.3(c)), subject to remittal of disqualification, if all parties affirmatively consent to the judge's presiding (22 NYCRR [former] 100.3 (d)).

See 22 NYCRR 100.3 (E), 100.3(F).

If two years have elapsed since the last representation, the judge need not exercise recusal, provided that the judge believes that he or she can be impartial.

         Nevertheless, the judge should disclose the relationship on the record, and should recuse in the event any party objects to the judge's continuing to preside, 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 amount of time that has elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety.

         The same guidelines apply, in general, where the previous representation of the former client was in connection with a criminal matter and the former client later appears before the attorney-judge in a criminal matter.