Opinion 99-91

September 14, 1999

NOTE: This opinion has been partly overruled by Opinion 09-27 to the extent that it requires a judge to insulate his/her law clerk for two years from all cases in which the law clerk's prior employer appears, even when the law clerk had no involvement in the case before the court. The opinion has also been modified by Joint Opinion 07-105/07-119 with respect to the judge's disqualification.

Digest:         (1)(a) The judge is required to insulate the judge's court attorney from any involvement in matters worked on by the court attorney while previously employed by a law firm and which are now before the judge. Disclosure is required and the judge should exercise recusal if requested. (b) As to other matters of the law firm, the judge, for a two-year period should disclose the relationship and insulate the court attorney from working on such matters.

(2) A judge should not preside over any matter in which an appearance is made by a law firm to which the judge had forwarded cases upon becoming a full-time judge, for a two-year period following final disposition of such cases.

Rule:            22 NYCRR 100.3(E)(1); 22 NYCRR (E)(1)(b)(i), (ii); 100.3(F)

Opinions:      91-120 (Vol. VIII); 91-152 (Vol. VIII); 94-05 (Vol. XII); 96-125 (Vol. XV); 99-48.

Opinion:

         A full-time judge seeks advice in two areas. First, the judge inquires if the law firm that previously employed the judge's court attorney is precluded from practicing before the judge. Second, the judge notes that in closing down his/her law practice upon becoming a full-time judge, a number of matters were taken over by other attorneys. The judge seeks advice concerning any disqualification that may be required with respect to those firms.

         Regarding the first question, the Committee reaffirms its previously expressed opinion that with respect to cases worked on by the court attorney while with the law firm, disclosure is required, and recusal should follow if requested by a party. Should the parties agree that disqualification is not necessary and the judge believes he or she can be impartial, the judge may preside. However, in such instances the law clerk must be insulated from any involvement in those matters. 22 NYCRR 100.3(E)(1), 100.3(F); Opinions 99-48, 96-125 (Vol. XV); 91-152 (Vol. VIII). As to other matters of the law firm, there should be disclosure for a period of two years, during which time the court attorney should not be involved in such matters.

         As to the second inquiry, the Committee, in considering analogous situations, suggested that two years after a relationship with a law firm ends would be an appropriate period during which a judge should exercise recusal in matters involving that firm. Opinions 91-120 (Vol. VIII); 94-05 (Vol. XII); 22 NYCRR 100.3(E)(1). This two year period is also appropriate in the instant situation involving the referral of cases to another firm. Therefore, the judge should not preside over matters involving those firms unless and until two years have passed after disposition of the referred matter or final fee payments are made to the judge, whichever comes later. It is, of course, axiomatic that the judge may not ever preside over a case in which the judge or the judge's former law firm served as the attorney while the judge was with the firm. 22 NYCRR 100.3(E)(1)(b)(i), (ii).