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Legatee Petitions to Compel Payment of a Legacy

In a probate proceeding in which legatee Mr. E, petitioned to compel the payment of a legacy, nonparty Mr. LB appeals, by permission, from so much of an order of the Surrogate’s Court, dated December 4, 2008, as disqualified his law firm, SR, P.C., and all members and associates of that firm, from appearing as the petitioner’s attorney.
The facts are stated as follows:

The appellant, LB, was employed for many years as chief court attorney of the law department of the Surrogate’s Court, Kings County (hereinafter the Law Department). In February 2008, shortly after retiring from government service, LB joined SR, P.C. (hereinafter the Firm), a small law firm specializing in estate practice. Prior to LB’s association, the Firm was composed of only two other attorneys, Atty. SR himself and Atty. NA. In late November or early December 2006, before LB left his employment as chief court attorney, the Firm was retained to represent the petitioner in this Surrogate’s Court proceeding.

On September 4, 2008, when SR appeared before the Surrogate’s Court, on behalf of the petitioner in this proceeding, the Surrogate informed him that this proceeding had initially been referred to the Law Department during LB’s tenure as chief court attorney. The Surrogate’s Court then proceeded, in LB’s absence, to conduct an inquiry to determine the extent of LB’s involvement in this proceeding while employed as chief court attorney, and the extent to which he may have subsequently discussed the case with the two other attorneys at the Firm. In response to the Surrogate’s questions, SR stated that LB had not worked on this case since joining the Firm, and that neither SR nor NA had discussed the case with LB. When asked by the Surrogate if he were aware that this case was pending in that Court’s Law Department while LB was still chief court attorney, SR replied that he was not sure that there was anything pending in the Law Department while LB was its chief.

Three months after the Surrogate conducted the inquiry, in an order dated December 4, 2008, the Surrogate’s Court disqualified LB and all other members of the Firm from appearing as the petitioner’s counsel in this proceeding. Relying on the prescribed duties of a chief court attorney, as set forth in the title standards promulgated by the Unified Court System, the court found that, during his tenure as chief court attorney, LB necessarily would have been required to review every proceeding referred to the Law Department in order to assign it to a subordinate court attorney. The Surrogate’s Court reasoned that this necessary familiarity with each proceeding assigned by LB, without more was sufficient to create an appearance of impropriety in violation of Code of Judicial Conduct Canon 2 and Code of Professional Responsibility, with respect to any matter referred to the Law Department while LB served as chief court attorney.

We disagree with the conclusions reached by the Surrogate’s Court, and reverse its order insofar as appealed from. Preliminarily, we note that it was error for the Surrogate’s Court, in disqualifying LB and the Firm from appearing as the petitioner’s counsel in this proceeding, to rely upon Code of Judicial Conduct Canon 2, and case law interpreting that provision. The Code of Judicial Conduct contains rules intended to govern the conduct of judges and candidates for elective judicial office, and is, thus, not relevant in determining whether to disqualify an attorney.
At the time that the court issued its order dated December 4, 2008, the conduct of attorneys in New York State was governed by the Code of Professional Responsibility. That code has now been replaced effective April 1, 2009, by the New York Rules of Professional Conduct. As relevant to this appeal, both Code of Professional Responsibility former DR 9-101 (b) (1) (22 NYCRR former 1200.45 [b] [1]) and current Rules of Professional Conduct, similarly provide that, where an attorney moves from the public sector to private employment, he or she is disqualified from representing a litigant in a matter in which the attorney “participated personally and substantially” as a government employee.

In an advisory opinion discussing DR former 9-101 (b) (1), the New York State Bar Association Committee on Professional Ethics pointed out that, until 1990, that DR used the phrase “substantial responsibility” in describing the degree of contact which would warrant disqualification of a former government attorney, a standard which did not envision mere perfunctory approval or disapproval of the matter in question. Rather, the DR contemplated a situation where the former government attorney was personally involved to an important, material degree, in the investigation or deliberative processes regarding the transactions or facts in question, as was clarified by the 1990 amendment substituting the phrase “personally and substantially” for “substantial responsibility”. Furthermore, the comments to rule 1.11 (a) (2) explain that the current rule represents a balancing of interests, and that “the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government”.

Contrary to the conclusion reached by the Surrogate’s Court, LB did not “participate personally and substantially” in every case referred to the Law Department while he served as chief court attorney simply because his stated duties allegedly required him to review every case referred to the Law Department in order to assign it to an appropriate subordinate court attorney. Rather, even if LB’s position entailed such review, a state of facts which is not established by the record, this responsibility was administrative rather than substantive in nature, did not directly affect the merits of any such case, and did not rise to the level of personal and substantial participation necessary to warrant LB’s disqualification from appearing as counsel in every such case now that he has left his employment with the court.

While there may be cases that were referred to the Law Department during LB’s tenure as chief court attorney in which his involvement went beyond administrative review, the Surrogate’s Court had no evidence before it that LB’s involvement, if any, in the instant proceeding was more than administrative.

Furthermore, LB’s alleged involvement in the development of the Law Department’s policies and procedures was not a proper ground for disqualification under DR former 9-101 or rule 1.11 (a) (2). As explained in Comment 4, the disqualification of a former government employee is limited “to matters involving a specific party or parties”.

Finally, although we agree that it was improper for the Surrogate’s Court to disqualify LB and the Firm from representing the petitioner, LB has not demonstrated that the court cannot fairly and impartially preside over this proceeding. Accordingly, we decline his request to direct that this proceeding and all proceedings in which he represents a party be reassigned to another Surrogate or Justice.

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