Opinion 23-16

February 2, 2023

Digest:         A judge need not disclose or disqualify from a case merely because a party’s high-level employee, who will be present in the courtroom, also (1) was previously a client of the judge more than two years ago and (2) is married to a public official who was recently on the same slate as the judge and publicly endorsed the judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 22-31; 20-159; 15-212; 15-62; 07-24; 90-182; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time judge has been assigned several cases involving a defendant hospital. The judge has been advised that the hospital’s risk manager, who “will likely be seated at the defense table,” is a former client on two discrete transactional matters. That attorney-client relationship completely ended in 2016. In addition, the risk manager’s spouse is a public official who was on the same slate as the judge last year, and who publicly endorsed the judge. The judge is confident in their ability to be fair and impartial in matters involving the hospital, but asks whether disclosure or disqualification is required.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Where, as here, no specific disqualifying circumstances apply (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         We have said that “a judge is disqualified, subject to remittal, from presiding in any matters involving a former client for two years after ‘representation of a former client ends or final payment of any fees pending or owed to the judge, whichever is later’” (Opinion 22-31 [citations omitted]). Here, the former attorney-client relationship completely terminated in 2016, more than two years ago. Accordingly, disqualification is not required on this ground, provided the judge can be fair and impartial.

         A recently elected judge need not disclose or disqualify from a proceeding merely because one of the attorneys publicly supported the judge in the judge’s election campaign, “as such minimal participation does not raise an inference of partiality” (Opinion 90-182 [listed as supporter]; see also Opinions 20-159 [fellow slate member]; 07-24 [endorsement]). Here, the relationship is even more tenuous, as the judge’s supporter is not involved in the litigation but is only married to a party’s employee (cf. Opinion 15-212 [finding it “even less reasonable to question the judge’s impartiality” where a law firm’s political contributions were to the judge’s spouse’s political campaign, rather than to the judge]). Indeed, we have routinely acknowledged that spouses retain independent political identities (see e.g. Opinion 15-62 [“a judge’s spouse remains free to engage in his/her own bona fide independent political activities”] [citations omitted]). Thus, disqualification also is not required on this ground, provided the judge can be fair and impartial.

         As there is no reasonable basis to question this judge’s impartiality on these facts, and the judge has already determined they can be fair and impartial in the matter, we conclude the judge may preside. Disclosure is not mandated.