Opinion 97-90

September 11, 1997

NOTE: Please consult Joint Opinion 08-171/08-174 before relying on this opinion. To the extent that this opinion is inconsistent with Joint Opinion 08-171/08-174 regarding a judge's disclosure/recusal obligations when his/her personal attorney or his/her personal attorney's partners and associates appear in the judge's court, it is overruled.

Digest:         A Family Court judge who is represented by an attorney in an adoption proceeding (1) should not preside over any matters in which the attorney participates during the period of the attorney's representation of the judge; (2) should recuse himself/herself, subject to remittal, for the two years following the completion of the attorney's representation; and (3) after two years have elapsed, there should be disclosure and if a party objects, the judge should seriously consider disqualifying himself/herself and should do so unless the judge concludes that the objection is frivolous, in bad faith, or wholly without merit.

Rules:          22 NYCRR 100.2, 100.3(F); Opinions 92-31 (Vol. IX), 92-54 (Vol. IX).

Opinion:

         A Family Court judge presides over adoption matters in a large metropolitan county. The judge and the judge's spouse are seeking to adopt a child and have retained an attorney to represent them in the adoption proceedings. The question posed is whether it is proper for the judge to preside over adoption matters in which the same attorney is involved. A further question presented is whether any action by the judge to approve or disapprove such petitions constitutes an appearance of impropriety.

         Section 100.2 of the Rules Governing Judicial Conduct mandates that a judge avoid impropriety and the appearance of impropriety in all of the judge's activities. In the opinion of the Committee, an appearance by the attorney before the judge while the attorney is representing the judge, in any pending matter would convey the appearance of impropriety and, therefore, is not permissible.

         During the first two years following the completion of the adoption proceeding and the attorney no longer represents the judge, the judge must advise all parties of the fact that the attorney has represented the judge, and shall recuse himself/herself in matters in which the attorney is a participant. During that two-year period, there may be a remittal of disqualification pursuant to the Rules Governing Judicial Conduct. 22 NYCRR 100.3(F). Upon remittal by the parties, the judge may then preside, assuming the judge feels that he/she can be impartial. Opinions 92-31 (Vol. IX); 92-54 (Vol. IX).

         After two years have passed since the last representation by the attorney, the judge should disclose the relationship to the parties. If any party objects, the judge should seriously consider disqualifying himself/herself and should do so unless the judge concludes that the objection is frivolous, in bad faith, or wholly without merit. Opinion 92-54.