Must a New York judge recuse when a party is represented by a lawyer who once represented the judge?

Plain-English summary

The committee was asked when a lawyer who has represented a judge, or that lawyer's partners and associates, may later appear before the judge. It reconsidered N.Y. State 511 (1979), which had adopted a per se rule: relying on Canon 9 of the Code of Professional Responsibility and the appearance of impropriety, that opinion disqualified the lawyer (and the lawyer's whole firm) and disqualified the judge, on the reasoning that the public might suspect the judge felt indebted to former counsel, or that the judge might avoid otherwise-appropriate rulings for fear of appearing biased. N.Y. State 511 allowed only narrow exceptions, for limited prior representation after enough time had passed, and (per a later letter opinion) for representation in the course of the lawyer's official duties.

Prompted by a report of the Association's Special Committee on Procedures for Judicial Discipline, which found that the breadth of N.Y. State 511 made it hard for judges in small counties to find lawyers willing to represent them, the committee concluded the per se rule was "unduly rigid." Drawing on N.Y. State 548 (1983) and N.Y. State 384 (1975), it held that where a judge and a lawyer have had prior connections, the question is governed primarily by the Code of Judicial Conduct: absent a statutory prohibition or special circumstances, the lawyer is not required to disqualify, and it is the judge's duty to consider disqualification. Disqualification, if any, must be grounded on Canon 3C(1) of the Code of Judicial Conduct, that is, on whether the judge's impartiality might reasonably be questioned, which depends on the nature of the original representation, the amount of time that has passed, and whether the parties have waived disqualification under Canon 3D. The committee added that recusal is not automatically required where the lawyer's partners or associates, rather than the lawyer, appear before the judge. N.Y. State 511 was modified accordingly.

Currency note

This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 and restructured judicial-conduct regulation under the Rules Governing Judicial Conduct (22 NYCRR Part 100). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Is recusal automatic when a party's lawyer once represented the judge?

A: No. The committee rejected the earlier per se rule and held the question turns on whether the judge's impartiality might reasonably be questioned under Canon 3C(1), considering the nature and recency of the prior representation.

Q: Who decides, the judge or the lawyer?

A: The judge. The committee held that, absent a statutory prohibition or special circumstances, the lawyer is not required to disqualify; it is the judge's duty to consider disqualification.

Q: Can the parties waive the judge's disqualification?

A: Yes. The committee treated waiver, under Canon 3D, as one of the factors bearing on whether disqualification is required.

Q: Are the lawyer's partners and associates automatically barred too?

A: No. The committee held recusal is not automatically required merely because the lawyer's partners or associates appear before the judge.

Background and rules framework

The opinion shifted the governing source from Canon 9 of the Code of Professional Responsibility to Canon 3C(1) and Canon 3D of the Code of Judicial Conduct (judicial disqualification and remittal of disqualification), referencing DR 5-105(D), DR 7-110(A), and DR 9-101(C). It expressly modified N.Y. State 511 (1979).

Citations and references

Rules of Professional Conduct:

• Code of Judicial Conduct Canon 3C(1) (disqualification where impartiality might reasonably be questioned); Canon 3D (remittal of disqualification)
• NY DR 5-105(D); DR 7-110(A); DR 9-101(C)

Other opinions cited:

• N.Y. State 511 (1979): the per se rule modified here
• N.Y. State 548 (1983): the judge, not the lawyer, must consider disqualification; Canon 3C(1) governs
• N.Y. State 384 (1975): relationship between a judge and a lawyer does not by itself disqualify the lawyer
• ABA Informal Op. 1331 (1975): case-by-case treatment of prior representation of a judge

See also

• NY State Bar Op. 617: ALJ disqualification after agency-staff service
• NY State Bar Op. 615: Vicarious disqualification and conflicts of interest

Source

• Landing page: https://nysba.org/opinion-574/