Opinion 23-95
September 7, 2023
Digest: A judge (1) is disqualified, subject to remittal, in all cases in which a party is represented by an attorney from the small law firm that represents the judge’s family’s real estate business and (2) may not appoint an attorney from that firm as a guardian ad litem.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)-(2); Opinions 20-115; 18-32; 17-167; 17-97.
Opinion:
The inquiring judge’s family owns a real estate business and retains a small local law firm to represent it in landlord-tenant matters. The judge has no active involvement in the business, which is operated exclusively by the judge’s first- and second-degree relatives.[1] Given that there are no more than three attorneys at this firm, who likely cover for each other, the judge asks if it is permissible to preside in cases in which an attorney from the firm represents a party, or to appoint a member of the firm as a guardian ad litem.
A judge must always avoid 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 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself whenever the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). In connection with this requirement, a judge must “keep informed about the judge’s personal and fiduciary economic interests” (22 NYCRR 100.3[E][2]) and “make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge’s household” (id.).
A judge is disqualified, subject to remittal, in cases where an attorney who represents the judge’s first or second-degree relative appears while the representation is ongoing (see Opinions 20-115; 18-32 [judge disqualified in matters in which an attorney representing the judge’s first-degree relative in a tax certiorari matter appears]; 17-97 [judge disqualified when outside counsel to a real estate management company of which the judge’s first-degree relative is president appears]). We explained that even though the relative has little contact with outside counsel, the judge’s relatives necessarily have ultimate responsibility and authority to select and approve the work of counsel (id.).
Disqualification is “usually limited” to the specific attorney who is or was personally involved, either directly or in a supervisory capacity, in representing the judge’s first- or second-degree relative (see Opinion 20-115). This principle has some exceptions. For example, where the judge has a personal interest in the legal matter, we have said the judge should proceed with their disqualification obligations as if the judge had retained counsel personally (see Opinion 23-88).
Nothing before us suggests that the judge’s family’s business is represented exclusively by one individual attorney at the law firm. Indeed, the law firm is sufficiently small that knowledge of the judge’s family’s business must be imputed to all attorneys at the firm. Accordingly, we conclude the judge is disqualified, subject to remittal, in all cases in which the law firm appears. For the same reasons, the judge may not appoint any attorney at the firm as a guardian ad litem.
Disqualification is required throughout the course of the representation and for two years thereafter (cf. Opinion 17-167). After this two-year period, the judge has no further obligation.
[1] Relatives within the second degree of relationship include the parents, children, grandparents, grandchildren or siblings of the judge or the judge’s spouse, or the spouse of such person.