Opinion 20-52

May 20, 2020

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).

Dear :

         We respond to your inquiry (20-52) asking for your ethical obligations in matters involving a lawyer your sibling hired to represent him/her as executor of a deceased relative’s estate. You are one of several beneficiaries in the will, and you expect the estate proceedings will be uncontested. You note the lawyer could potentially appear before you either as attorney for another estate or as a guardian ad litem.

         In general, a judge is disqualified, subject to remittal, when any attorney involved in representing the judge’s second-degree relative appears before the judge in any capacity while the representation is ongoing. Remittal is not permitted if any party is proceeding without legal representation; or the judge is unwilling or unable to make full disclosure of the basis for the disqualification; or the judge doubts his/her ability to be impartial.

         Once the representation is fully concluded and all outstanding fees have been paid, the judge is no longer disqualified outright from hearing matters in which his/her relative’s former counsel appears, provided the judge can be fair and impartial, but the judge must fully disclose the prior representation for a two-year period thereafter. During this period, the judge must disqualify him/herself if any party appears without counsel or if the judge does not wish to or cannot fully disclose the former representation, but otherwise has discretion to preside even if a party objects after disclosure.

         After the two-year period has elapsed, the judge has no further obligation, but may disclose in his/her sole discretion if he/she wishes to do so.

         We see no reason for a different result here, as your interest as a beneficiary in the estate proceedings is entirely distinct from, and potentially adverse to, your sibling’s interest as the executor, even if you do not currently expect the proceedings to be contested.

         Enclosed for your review is Opinion 18-32.

                                                Very truly yours,

                                                George D. Marlow, Assoc Justice

                                                Appellate Div., First Dept. (Ret)

                                                Committee Co-Chair


                                                Hon. Margaret T. Walsh

                                                Supreme Court Justice

                                                Committee Co-Chair