January 30, 2020
Digest: A judge with an interest in unpaid fees separately shared by the judge’s former partner must disqualify, subject to remittal, in any matter where the former partner appears, for two years after final payment of those fees, but need not disclose or disqualify from matters handled by other attorneys from the same county department of social services where the former partner is now employed.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.4(D)(1)(c); Opinions 18-113; 15-126; 15-63; 11-45; 00-67.
The inquiring judge dissolved a legal partnership that he/she held with another attorney more than two years ago, but two personal injury cases from the former practice remain open. The judge and his/her former partner have “separate agreed upon interests in the unpaid fees.” The former partner, now employed as an attorney for the county department of social services, regularly appears on child protective matters in the judge’s court. The judge asks if he/she is disqualified from the attorney’s cases and/or from cases handled by other attorneys in the department of social services.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]). A judge must not allow family, social, political, or other relationships to influence the judge’s conduct or judgment (see 22 NYCRR 100.2[B]), and must not engage in “continuing business relationships with those lawyers … likely to come before the court on which the judge serves” (22 NYCRR 100.4[D][c]).
A judge who will be receiving compensation in ending a business relationship with the judge’s former law partner must disqualify, subject to remittal, from matters in which the former partner appears, for two years from the termination of the relationship or final payment of any fees pending or owed between them, whichever is later (see Opinions 15-126; 15-63; 11-45; 00-67). The two-year period begins once “all business and financial relations ... are entirely severed” (Opinion 15-63). The relationships “are not entirely severed until all financial obligations between the judge and [the attorney] have completely ended, so that no further potential contingency or compensation payments ... or other financial connections exist” (id.).
Here, although the partnership was dissolved more than two years ago, the pendency of two matters in which fees remain unpaid requires that the judge continue to disqualify until two years after final payment of those fees (see Opinions 15-126; 15-63; 11-45; 00-67). That each former partner’s share of the fees is governed by a separate agreement with successor counsel does not change the result. Inasmuch as each attorney’s fees must be paid from the same pool of money ultimately to be earned from the cases, the possibility of a dispute between the former partners over their respective shares of a finite settlement or judgment suffices to constitute a “continuing business relationship” between them (22 NYCRR 100.4[D][c]).
However, the judge may preside in matters handled by other attorneys in the same county department of social services without a need to disclose or disqualify, provided the judge can be fair and impartial (cf. Opinion 18-113 [where an APD is associated with a part-time judge’s law firm, the judge may nonetheless preside in cases where a defendant is represented by other APDs in the same public defender’s office]).