120120 NYEO, ETH 1209

• Case Date: December 01, 2020
• Court: New York

ETH 1209 Ethics Opinions 1209 New York Ethics Opinion December 1, 2020          TOPIC: Retention of former appellate judge with respect to easement on which judge previously ruled.          DIGEST: A former appellate judge, who was on a panel which issued a dispositive order about the scope of an easement, is personally disqualified from representing the owner of the servient estate of the same easement with respect to legal questions involving obstructions to the easement, equitable relief, adverse possession, and “overburdening” of the easement. However, the firm to which the former appellate judge is counsel may, pursuant to Rule 1.12(d), undertake the representation upon appropriate screening and notification.          RULES: 111(e), 1.12(a), 1.12(d)          FACTS          1. The inquirer is a New York lawyer who formerly served as a New York State appellate judge. Ten years ago, inquiring counsel was on a panel which issued a dispositive order confirming the validity and scope of an easement. Inquiring counsel, having retired from the bench, is now “of counsel” to a firm. That firm has been approached by the owner of the servient estate of the same easement with respect to questions involving the potential legal effect of obstructions to the easement, the possible availability of equitable relief to the owner of the dominant estate, the applicability of adverse possession, and whether subdivision of the dominant estate would result in an “overburdening” of the easement.          QUESTION          2. Does inquiring counsel’s service as a judge in the appellate case preclude inquiring counsel or inquiring counsel’s firm from undertaking this new representation?          OPINION          Is the former judge personally disqualified?          3. Rule 112(a) of the New York Rules of Professional Conduct (“Rules”) provides: “A lawyer shall not accept private employment in a matter upon the merits of which the lawyer has acted in a judicial capacity.”          4. “A conflict under Rule 112(a) is a non-waivable conflict” (N.Y. State 1064, ¶ 4 (2015)), and...