Can a lawyer appear before a town justice when the lawyer represents a relative of another town justice, or after representing the judge's own adult child in an unrelated matter?

Plain-English summary

The committee addressed two questions about a lawyer appearing before a town justice where the lawyer had a representation tie to the judge or the judge's family. It began with the framework: where a relationship might keep a lawyer from appearing before a judge, the decision to disqualify is the judge's, governed by the Code of Judicial Conduct, not a duty the lawyer must self-impose (N.Y. State 574 (1986)). The standard is CJC Canon 3C(1): a judge should disqualify himself where his impartiality might reasonably be questioned, measured by an objective, disinterested observer. The lawyer's own duty, under Canon 9 and EC 9-6 of the Code, is to disclose the relationship to the judge and parties at the earliest opportunity so disqualification can be considered.

On the first question, the lawyer represented a relative of one town justice and wanted to appear before a different town justice of the same court. The committee held that even assuming the related justice would be disqualified, that disqualification is not imputed to the other justice. Unlike lawyers in one firm, judges of the same court have no economic or personal stake in each other's cases, so a reasonable party would not question one judge's impartiality merely because another judge is disqualified. Absent some independent relationship between the second judge and the disqualified judge or the relative, Canon 3C(1) did not require the second justice to step aside.

On the second question, the lawyer had completed representing a town justice's adult child in an unrelated matter in which the justice had no involvement, and now wished to appear before that justice. None of Canon 3C(1)'s listed grounds applied, so the test was again the objective-observer standard. The committee drew on N.Y. State 574, which rejected a per se rule for lawyers who had previously represented a judge and set guidelines keyed to the nature and recency of the representation. It directed that a judge assess prior representation of a relative on the same framework, tempered to reflect that the client was the relative, not the judge; in most instances that justifies a lesser response than if the judge had been the client, because the judge can confer no benefit on a concluded representation and any personal interest is attenuated. Applying that to the facts (an uncontested matrimonial matter for the adult child, with the justice not testifying or otherwise involved), the committee placed the situation in the category where disclosure for a period is appropriate but disqualification is not required.

Currency note

This opinion was issued in 1995, under New York's former Code of Professional Responsibility and the Code of Judicial Conduct then in force. New York replaced the Code with the Rules of Professional Conduct in 2009, and the Code of Judicial Conduct has been superseded by 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: Can a lawyer appear before a town justice while representing a different justice's relative?

A: Under this opinion, yes. The committee held that one judge's disqualification is not imputed to other judges of the same court, so the second justice need not step aside unless some independent reason questions that justice's impartiality.

Q: After representing a judge's adult child, can the lawyer appear before that judge?

A: The opinion concluded yes, where the judge had no involvement in the matter. Applying the N.Y. State 574 guidelines, tempered because the client was the relative rather than the judge, disclosure is appropriate but disqualification is generally not required.

Q: Whose job is it to raise the relationship, the lawyer's or the judge's?

A: The committee held disqualification is the judge's decision under the Code of Judicial Conduct, but the lawyer has a duty under Canon 9 and EC 9-6 to disclose the relationship to the judge and parties at the earliest opportunity.

Background and rules framework

The opinion interpreted the Code of Judicial Conduct, principally Canon 3C(1) (disqualification where impartiality might reasonably be questioned) and Canon 3D (remittal of disqualification), made applicable to all New York judges by 22 NYCRR 100.3(c), together with the lawyer's disclosure duty under Canon 9 and EC 9-6 of the former Code of Professional Responsibility. The closest Model framework is the Model Code of Judicial Conduct, Rule 2.11 (disqualification). The cited judicial canons have since been superseded by the Rules Governing Judicial Conduct; the provisions here are historical.

Citations and references

Rules of Professional Conduct:

• MCJC Rule 2.11 (judicial disqualification)
• NY CJC Canon 3C(1), 3D; Code Canon 9; EC 9-6; DR 7-101

Other opinions cited:

• N.Y. State 574 (1986): guidelines for a lawyer appearing before a judge the lawyer formerly represented
• N.Y. State 548 (1983); N.Y. State 384 (1975): the lawyer's duty to disclose the relationship
• N.Y. City 893 (1978): a debt of gratitude alone does not disqualify a judge

See also

• NY State Bar Op. 1243: Public defender related to a part-time judge
• NY State Bar Op. 1115: Public defender appearing before a colleague judge
• NY State Bar Op. 725: Assistant DA appearing before a sibling judge
• NY State Bar Op. 985: Former law clerk appearing before the employing judge

Source

• Landing page: https://nysba.org/opinion-673/