December 8, 2011
Digest: (1) Where a public defender’s office represents a judge’s child, the judge need not disclose the representation every time an assistant public defender appears before the judge once the assistant public defender advises the judge that he/she does not represent the judge’s child and is not otherwise involved in the judge’s child’s representation. (2) A judge should not intervene in a Public Defender’s staffing decisions.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 09-55; 08-165; People v Moreno, 70 NY2d 403 (1987).
The inquiring judge states that a local Public Defender’s office is currently representing the judge’s child in a criminal matter. However, the assistant public defender who regularly appears before the judge has advised the judge on the record that “[he/she] has had no contact from any source, nor any information, regarding my [child]’s case.” The judge has “no doubt that I can be fair and impartial if I preside over a case involving a lawyer from the [same] office” that is representing the judge’s child, and therefore asks:
1) Must I continue to disclose the facts and circumstances to counsel and parties when the regular [assistant public defender] (who advised of no contact with my [child]’s case) appears before me in [his/her] agency capacity? ... in [his/her] private attorney capacity?
2) Is it appropriate for me to contact the Public Defender’s Office requesting insulation of the [assistant public defender] appearing before me? ... requesting they advise me of any circumstances making it appear improper for me to preside?
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In particular, a judge must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
As for the judge’s first question, the Committee has previously advised that a judge is disqualified, subject to remittal, when an attorney who is representing the judge’s parent or child appears in the judge’s court (see e.g. Opinions 09-55; 08-165). Opinion 08-165 provides detailed guidance on the judge’s obligations when there is an appearance by the Public Defender or any assistant public defender who “was or still is involved” in the judge’s child’s representation, either in their government capacity or as private practitioners (see Opinion 08-165).
More significantly for the present inquiry, however, a judge need not disqualify him/herself from matters in which other attorneys on the Public Defender’s staff, who have not had any involvement with the representation of the judge’s child, appear in the judge’s court (see Opinion 08-165).
The Committee recognizes that it may be difficult for the judge to know which assistant public defenders have worked on the judge’s child’s case, and to what extent, as assignments within a law office may change, and attorneys who are not formally assigned to a matter may informally consult with other colleagues from time to time. Therefore, even though the assistant public defender who regularly appears in the judge’s court advised the judge on the record that he/she “has had no contact from any source, nor any information, regarding” the judge’s child’s case, that could change at the Public Defender’s discretion, for example to address changes in workload or resources.
Consequently, the judge may, if he/she chooses, continue to follow Opinion 08-165 by disclosing that the Public Defender’s office is representing his/her child in each case in which the assistant public defender who advised the judge on the record that he/she is not involved in the judge’s child’s case appears, whether as an assistant public defender or as a private attorney, in order to confirm that the attorney has remained uninvolved in the judge’s child’s representation. With such confirmation, the judge need not disqualify him/herself (id.).
However, in the Committee’s view, the inquiring judge also has two additional options when that particular attorney appears:
(A) the judge may direct the attorney on the record to advise the judge if the attorney becomes involved in the judge’s child’s case; or
(B) the judge may, by letter, direct the attorney or the Public Defender to advise the judge if the attorney becomes involved in the judge’s child’s case.
If the judge chooses to pursue one of these two options, the judge may thereafter rely on the attorney’s representation that he/she is not involved in the judge’s child’s case. Thus, from that point on, unless and until the judge receives information indicating the attorney has become involved in the judge’s child’s case, the judge may preside over matters in which that attorney appears without disclosing that the attorney works for the same Public Defender’s office that is representing the judge’s child.
With respect to the judge’s second question, the Committee believes it must be answered in the negative. The judge should not ask or direct the Public Defender to assign particular attorneys to, or insulate them from, particular cases (cf. 22 NYCRR 100.1 [a judge must uphold the integrity and independence of the judiciary]). Thus, it is not appropriate for the judge to ask the Public Defender to insulate the assistant public defender who regularly appears in the judge’s courtroom from the judge’s child’s case, even though the attorney has advised the judge on the record that he/she is not involved in the matter.
Similarly, the judge also should not ask the Public Defender to “advise [the judge] of any circumstances making it appear improper for [the judge] to preside,” because this could create an appearance that the judge is delegating the responsibility of determining whether there is an appearance of impropriety to a non-judge (cf. People v Moreno, 70 NY2d 403 ).