Opinion 23-125

October 26, 2023

Digest:  A part-time lawyer judge is disqualified, subject to remittal, in all matters involving an attorney who is employed by the judge’s client as in-house counsel and operations manager and serves as the judge’s primary client contact.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(F); 100.6(B); Opinions 22-193; 21-76; 21-22(A); 18-80; 16-130.

Opinion:

          The inquiring part-time judge maintains a private law practice.  One of the judge’s clients employs a local attorney as in-house counsel and operations manager.  This attorney is the judge’s primary client contact, and they regularly discuss ongoing projects and strategy. The judge’s legal invoices are submitted to the attorney for payment, after personal approval by the client’s principal.  The attorney also engages in the practice of law independent of his/her employment with the judge’s client, and in that independent capacity sometimes appears as defense counsel at arraignments outside of regular business hours and/or on other matters in the judge’s court.  The judge asks if it is ethically permissible to preside in cases where a party is represented by this attorney.

          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 part-time judge may practice law (see 22 NYCRR 100.6[B]), but a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]).  A judge must disqualify in any proceeding in which the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]), including matters where the judge has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]).

          In Opinion 22-193, we advised that a part-time judge who had pending assigned counsel assignments or unpaid assigned counsel vouchers was disqualified, subject to remittal, when the assigned counsel administrator appeared in the judge’s court.  Because “the administrator may have a role in (1) reviewing and approving payment vouchers, (2) assigning 18-B cases to specific attorneys, and/or (3) evaluating the performance of 18-B attorneys,” we determined that the administrator’s functions “create[d], at the very least, an appearance that the actions and decisions of the administrator will have a financial impact on a part-time attorney judge whose law practice includes assigned counsel cases” (Opinion 22-193 [citations omitted]).

          Here, the circumstances described could readily create a public perception that the client’s in-house counsel and operations manager plays a similar gate-keeping role with respect to payment of the inquiring judge’s legal invoices (see id.).  Moreover, the attorney clearly has an ongoing business relationship with the judge, in that he/she serves as the judge’s primary client contact and discusses ongoing projects and strategy directly with the judge on behalf of his/her employer (see Opinions 21-76 [ongoing business and financial relationship]; 18-80 [ongoing referral relationship]; cf. Opinion 16-130 [judge is disqualified, subject to remittal, in matters involving a law firm that represents the judge’s spouse’s employer where judge’s spouse, as director of government relations, helps select the outside law firm and thereafter works directly with the firm’s lobbyists]). 

          Therefore, we conclude that the judge’s impartiality “might reasonably be questioned” when the attorney appears before the judge (22 NYCRR 100.3[E][1]).  The judge must accordingly disqualify in any matter involving the attorney (see Opinions 22-193; 21-76; 18-80).  The disqualification is subject to remittal after full disclosure and the affirmative consent of the parties and, if represented, their counsel (see id.; see also Opinion 21-22[A] [describing remittal process]; 22 NYCRR 100.3[F]).