Opinion 99-106

September 14, 1999

Please Note:  Opinion 09-193 states: “[T]he Committee overrules its earlier Opinion 99-106 (Vol. XVIII) and now advises that a judge also must disclose that an attorney who appears before him/her serves as a Special Master in the judge's court. Thereafter, if a party objects to the judge continuing to preside, the judge has the discretion to exercise recusal or continue preside, depending on the circumstances in the particular case (see Joint Opinion 07-105/07-119).”

Digest:         Neither disclosure nor recusal are required where an attorney who has served as a volunteer Special Master in the judge's part in the conferencing of cases, appears before the judge representing a client, provided the judge feels he or she can be impartial.

Rule:            22 NYCRR 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinion 94-14 (Vol. XII).

Opinion:  

         A judge inquires whether an offer to recuse is required in cases where a party is represented by an attorney who periodically serves as a Special Master in the judge's part. The judge advises that he/she is assisted on conference days by such Special Masters, who are volunteer attorneys, some of whom serve once every few weeks, and others who serve only on an emergency basis.

         We note that none of the specific circumstances set forth in sections 100.3(E)(1)(a)-(e) of the Rules Governing Judicial Conduct as requiring judicial disqualification, is present in this inquiry. Nor does this appear otherwise to be a situation "in which the judge's impartiality be reasonably questioned." 22 NYCRR 100.3(E)(1). Additionally, in a somewhat related situation, the Committee has previously stated that Family Court judges need not disqualify themselves in matters in which a former Hearing Examiner appears as an attorney, provided the judge's relationship with the former Hearing Examiner does not "impair the exercise of independent judgment." Opinion 94-14 (Vol. XII). The Committee believes the same conclusion is applicable here. Therefore, if the inquiring judge is satisfied that his or her independent judgment is not impaired by the relationship, the judge need not offer to recuse or take any of the other further steps suggested in the letter of inquiry.