Opinion 23-150

December 14, 2023

Digest:  Once a judge and their spouse jointly hire a law firm to mediate their divorce negotiations, the judge is disqualified, subject to remittal, in all matters where the law firm appears.  This obligation lasts while the mediation relationship is ongoing and for two years after the mediation relationship completely ends and all fees are paid.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 23-44; 22-183; 21-22(A); 19-104; 15-08; 08-171/08-174; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring judge and the judge’s spouse are in the process of a divorce and have jointly hired a law firm to provide mediation services.  Although the selected mediator is an attorney, he/she will not provide legal representation to either party or decide any disputed issues.  He/she will act solely as a mediator for the divorcing couple, serving in a neutral capacity to assist them in reaching a mutually agreeable resolution.  The law firm also provides traditional legal services to other clients and has a small number of cases in the judge’s court.  The judge asks if, and how long, the judge must disqualify from the law firm’s cases.

          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]).  Therefore, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).  A judge must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specifically enumerated circumstances required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).  Where disqualification is not mandatory, however, the judge is the sole arbiter of recusal, a discretionary decision within the personal conscience of the court (see People v Moreno, 70 NY2d 403, 405 [1987]).

In general, when a private attorney is representing a judge in the judge’s personal or fiduciary capacity, we have required disqualification for the entire law firm during the representation (see e.g. Opinions 19-104; 08-171/08-174).  For two years after the representation is completely terminated and all fees are paid, the judge is still disqualified, subject to remittal, from all matters in which an attorney who personally represented the judge appears before the judge, and the judge must disclose the former representation when other attorneys from the same law firm appear before the judge (see Opinions 23-44; 19-104; 08-171/08-174).  After the two-year period elapses, however, the judge has no further obligation based solely on the former representation (see Opinion 22-183).

          While we have not previously considered a judge’s obligations with respect to a law firm retained to mediate a divorce, we have applied a similar standard to valuation experts who were retained or appointed in a judge’s divorce proceeding (see Opinion 15-08).  We note that the topics and information foreseeably shared during a divorce mediation may be highly sensitive and confidential.  Accordingly, we conclude that during the mediation and for two years after the mediation relationship completely terminates and all fees are paid, the inquiring judge must disqualify from all cases in which the law firm appears.

          Disqualification on this basis is nonetheless subject to remittal (see Opinion 15-08).  As always, remittal requires both full disclosure on the record of the basis for disqualification and the voluntary, affirmative consent on the record of all parties and (if represented) their attorneys to waive or remit the judge’s disqualification.  Thereafter, provided the judge concludes he/she can be fair and impartial and is willing to preside, the judge may participate in the proceeding (see Opinion 21-22[A]; 22 NYCRR 100.3[F]).