“NY Ethics Opinion on Judicial Screening: Ethics Opinions 1209” —

• “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.”
• “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.”
• “Rule 1.12(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.'”
• “‘A conflict under Rule 1.12(a) is a non-waivable conflict’ (N.Y. State 1064, ¶ 4 (2015)), and should be read in conjunction with both the New York Code of Judicial Conduct (22 NYCRR Part 100) and Judiciary Law § 17”
• “If the inquirer’s law firm complies with Rule 1.12(d) by promptly and properly screening off the inquirer and by providing the specified notifications, and if no other circumstances in the particular representation create an appearance of impropriety, then Rule 1.12 will not prohibit the firm from accepting the representation despite the inquirer’s personal disqualification.”

“Calif. Judge DQ’d From Atty Fees Fight In Water Plan Dispute” —

• “A California appeals court Tuesday ruled that a lower court judge should be disqualified from hearing a dispute over attorney fees after the Imperial Irrigation District fended off a challenge to its water distribution plan, ruling the district had the right to request a new judge after its initial loss in the case was overturned on appeal.”
• “After Abatti won an initial judgment overturning the plan in superior court, the judge awarded him costs and attorney fees. That order was then reversed and the case remanded by California’s Court of Appeal, Fourth Appellate District, Division One for a new decision on fees and costs.”
• “The district subsequently filed a motion to disqualify the superior court judge overseeing the remanded case, as it was his judgment that awarded the fees to the opposing party. But that judge denied the disqualification bid on the basis that a second peremptory challenge cannot be made before a ‘final judgment’ is declared.”
• “Justices Judith McConnell, Patricia D. Benke and Patricia Guerrero for the Fourth Appellate District, Division One granted a post-appeal motion in favor of the district, writing in an unpublished opinion Tuesday that because its reversal on appeal resolved a monetary dispute, the remanded order constitutes a ‘final judgment’ as well as a ‘new trial’ and therefore allows for new peremptory challenges.”
• “In its petition to the appellate court, the district said Abatti was initially awarded over $300,000 in attorney fees and over $25,000 in costs. It further alleged that the judge overseeing the decision, the Honorable L. Brooks Anderholt, had ‘deep connections’ and a ‘proclivity toward’ Abatti.”
• “While not addressing those accusations specifically, the panel asserted the district’s right to disqualify the judge.”