The opinion of the court was delivered by: Diana A. Johnson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Prior to the present motions being made, the underlying proceeding had been scheduled for trial. The proceeding seeks to compel distribution of a specific legacy. As is pertinent here, petitioner alleges that a parcel of real property was sold by the executor pursuant to the authority granted by preliminary letters issued pending probate for $650,000. The executor, however, alleges that the property was actually sold for $450,000.M. Douglas Haywoode, Esq., represented the executor at the closing for this property.
Mr. Haywoode in opposition to petitioner's motion, alleges that he should not be disqualified as he is the sole person knowledgeable of the history and nuances of the case. However, that is precisely the issue. Where an attorney representing a party was an active participant in a disputed transaction and has personal knowledge of the underlying circumstances, and it becomes obvious he ought to be called as a witness on behalf of his client, it is improper for him to continue representation (Chang v Chang, 190 AD2d 311 [1st Dept 1993]; Zaccaro v Bowers, 2 Misc 3d 733 [Civ Ct, NY County, 2003]; DR 5-102 of the Code of Professional Responsibility[22 NYCRR §1200.21]). As Mr. Haywoode has intimate and personal knowledge concerning what occurred at the closing he ought to be called as a witness. Accordingly petitioner's motion is granted and Mr. Haywoode is disqualified.
Respondent's motion to disqualify Seth Rubenstein Esq., and Nora Anderson, Esq., as trial counsel is denied as respondent has failed to articulate or set forth any meritorious basis for this requested relief.
While disqualification is not warranted based on respondent's motion, as a member of the firm of Seth Rubenstein, P.C., was until December 31, 2007, this court's chief court attorney and head of its law department the issue of disqualification remains, dependent on whether an appearance of impropriety arises when he or his partners/associates appear in this court.
The attorney at issue, Mr. Leo Beitner, was appointed chief court attorney in 2005. He had been acting as the chief court attorney and head of this court's law department from at least 1998. He left his position with the court effective December 31, 2007. He became associated with the firm of Seth Rubenstein, P.C., a firm specializing in estate practice, at the end of January 2008. As Canon 2 of the Code of Judicial Conduct [22 NYCRR §100.2] mandates a judge avoid even the appearance of impropriety, on April 21, 2008 this Court sought direction from the Advisory Committee on Judicial Ethics regarding the propriety of Mr. Beitner and/or his associates appearing in this court on any estate which was referred to the law department during Mr. Beitner's tenure as chief court attorney. In response, the Committee issued Advisory Opinion 08-91 ("Opinion") dated June 6, 2008.
The Committee began its analysis with the overriding consideration that a court is mandated to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, citing 22 NYCRR §100.2[A], contained within Canon 2 of the Code of Judicial Conduct. The Committee advised that when Mr. Beitner appears here on cases that were pending in the court when he departed, questions may be asked of him as are relevant in determining if there is a conflict between his current role representing clients and his former role at the court. The answers to these questions would enable the Court to evaluate whether his continued involvement would create an appearance of impropriety.
The Committee advised that when Mr. Beitner's partners and/or associates appear on cases that were pending while Mr. Beitner was employed here, they may be questioned to determine both Mr. Beitner's involvement in the case while he was employed here, and the extent to which he had discussed the case with his partners and/or associates appearing on the case.
In the Opinion, the Committee emphasized that they were addressing only the judge's role with relation to his/her execution of judicial duties, and not the possible questions, if any, under the Code of Professional Responsibility concerning the propriety of the attorney's appearance or that of the partner's or associate's appearance in such cases. Indeed the Committee expressly declined to comment on any issues in that regard, indicating they were beyond the Committee's jurisdiction.
The underpinning for Canon 2 of the Code of Judicial Conduct that judges avoid even the appearance of impropriety is that it is basic to every judicial proceeding that "the appearance, no less than the fact, of impartiality and fairness, is an indispensable attribute of the judicial system which must be preserved in order to protect the integrity and dignity of the judiciary in the eyes of the community." (Scott v Brooklyn Hosp., 93 AD2d 577 [2d Dept 1983]). As such the test is "not whether actual bias existed, but whether the circumstances gave rise to the appearance of bias or what may reasonably be regarded as bias" ( id.).
The basic duties of a chief court attorney are contained in the Title Standards promulgated by the Unified Court System. A chief court attorney serves in a confidential capacity and is responsible for supervising a law department consisting of subordinate court attorneys, assigning cases to them and evaluating their completed work. In performing his duties as this court's chief court attorney proceedings referred to the law department would be reviewed by Mr. Beitner and assigned to a member of the law department*fn1.
This necessary familiarity with each proceeding assigned by him, without anything more, is sufficient to raise the appearance of impropriety in the minds of attorneys, the parties and the public when this now former chief court attorney appears on these same estates as a private attorney. It inescapably gives both the other parties and the public the unmistakable appearance of impropriety. The parties and the public at large, are entitled to protection against the appearance of impropriety, notwithstanding no evidentiary proof of actual prejudice is shown (People v Shinkle, 51 NY2d 417 ). For the Court to allow Mr. Beitner to now appear on these proceedings would be a dereliction of its duty, and its obligation to ensure "that the integrity of the decision-making body must be above reproach and even the appearance of impropriety should be avoided" (DeCamp v Good Samaritan Hosp., 66 AD2d 766 [2d Dept 1978]).
As such there is no need to question him separately when he appears as private counsel on any estate that was referred to the law department while he acted as chief court attorney. The necessary familiarity with the estates which he gained through his prior supervisory position with the court creates an appearance of impropriety in ...