December 12, 2019
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: While a law firm is representing the judge’s not-for-profit membership corporation, the judge must disclose the representation when the law firm appears before him/her on behalf of other clients.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 18-171; 17-03; 15-32; 06-14; People v Moreno, 70 NY2d 403 (1987).
The inquiring judge is a member of a property owners’ association, formed as “a New York [not-for-profit] membership corporation which holds title to and controls access to” certain property used by the members. The judge resigned from the corporation’s board when litigation between the corporation and one of the members became imminent, but remains a regular member. The corporation’s board now plans to retain a law firm that regularly appears before the judge. Consequently, the judge asks if he/she may preside in matters involving the law firm once it is retained. The judge notes that any litigation involving the membership corporation would be commenced in a different county from where the judge presides.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in specific circumstances required by rule or law (see generally 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14) or whenever the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). If disqualification is not mandated under these two objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
Here, once the judge’s membership corporation retains the law firm, we believe the judge need not disqualify him/herself in all matters where the law firm appears on behalf of other clients. We believe disclosure is sufficient. Thus, assuming the judge can be fair and impartial, and provided no party is appearing pro se, the judge must disclose the representation on the record (see Opinion 06-14, as modified by Opinion 17-03 [disclosure required when an attorney in a case also “represents the defendants in the civil action filed by the cooperative of which the judge is a proprietary lessee”]; Opinion 15-32 [judge may preside where lawyer representing judge’s cooperative housing corporation appears on behalf of other clients]). If any party objects after disclosure, the judge retains full discretion as to whether or not to preside. The disclosure requirement continues until the representation completely terminates.
Where, as here, disclosure is mandated in lieu of outright disqualification, the judge must disqualify him/herself if (a) any party is appearing without counsel, (b) the judge is unwilling to make full disclosure, or (c) the judge questions his/her own ability to be fair and impartial in the case (see e.g. Opinion 18-171).
Consistent with this opinion, we hereby modify Opinion 15-32 to require disclosure when a law firm representing the judge’s building or housing corporation appears on behalf of other clients.