March 8, 2012
Digest: A judge who is disqualified from presiding over matters where a particular attorney appears may not “so-order” stipulations entered into by that attorney.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 11-43; 08-71; 07-206; 94-12 (Vol. XII); 93-88 (Vol. XI); State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 (2d Dept. 2007); Jazilek v Abart Holdings LLC, 10 NY3d 943, 944 (2008).
A judge states he/she is disqualifying him/herself from hearing matters where certain attorneys appear in accordance with Opinion 07-206. The judge currently presides in a compliance calendar part, where attorneys routinely ask the judge to “so order” discovery stipulations. The judge suggests that his/her role may be considered “purely ministerial,” since, if there is any dispute about discovery, the case goes to another judge. The judge asks whether, in these circumstances, it is ethically permissible “to ‘so order’ stipulations entered into by attorneys from whose cases I would otherwise be required to recuse myself.”
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]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]).
In general, where a judge must disqualify him/herself, the judge must not preside unless the disqualification is remitted – even on matters that may appear to be routine, mundane, uncontested or ministerial in nature (see e.g. Opinions 11-43; 08-71; 94-12 [Vol. XII]). In Opinion 08-71, the Committee advised that, where a criminal court judge has hired a Legal Aid attorney to begin work in six weeks as the judge’s law clerk, during the interim period “the judge should not [absent remittal] preside over any matters in which his/her future law clerk appears, even if the judge deems these appearances to be ‘routine’ or ministerial in nature,” such as “routine calendar appearances, arraignments or omnibus motions.” In Opinion 94-12 (Vol. XII), the Committee advised that a judge who is running for re-election may not preside over matters in which his/her campaign manager appears as an attorney, even on “routine, non-contested or administrative” matters. Nor does the parties’ consent to a particular judicial action necessarily render such action purely ministerial in nature (cf. Opinion 11-43 [noting that although resolution of initial issues in Surrogate’s Court, when necessary parties have waived and consented, “may often be, or appear to be, routine or mundane, they are fundamental and highly significant”]).
Although the inquiring judge asserts that his/her role with respect to so-ordering discovery stipulations is ministerial, the Committee is hesitant to so conclude without more information. For present purposes, the Committee recognizes that a task or function might be ministerial, rather than judicial in nature, if the judge’s role is purely formal, so that the judge lacks any real discretion in performing it, or if the task or function can properly be delegated to non-judicial personnel, or if it has no substantial legal effect. For example, it is conceivable that the judge could properly decline to so-order a stipulation in a matter in which the judge had previously served as attorney or counsel (cf. Judiciary Law § 14) or where the judge concludes that the stipulation contains terms that are illegal or void as against public policy (cf. Jazilek v Abart Holdings LLC, 10 NY3d 943, 944  [holding that the so-ordered stipulation between the landlord and tenant violated the Rent Stabilization Code and was void as against public policy]).
Nor is it clear that the inquiring judge could delegate the responsibility for so-ordering a discovery stipulation to non-judicial personnel (see Opinion 93-88 [Vol. XI] [distinguishing between the non-delegable “judicial function” of signing and approving bail bonds and the delegable “ministerial function” of counting cash when posted for bail]). And, at a minimum, parties who affirmatively choose to seek a judge’s signature on their stipulation appear (by their conduct) to demonstrate their belief that a judicial signature has some non-trivial meaning and effect (cf. State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2d Dept. 2007] [“conditional so-ordered stipulation becomes absolute upon a party’s failure to sufficiently and timely comply”]). The Committee therefore declines to assume, on the facts presented, that the function of so-ordering discovery stipulations is “purely ministerial.”
Accordingly, the Committee concludes that, as long as the inquiring judge must disqualify him/herself from matters in which a particular attorney appears in accordance with Opinion 07-206, the judge may not “so-order” stipulations entered into by that attorney unless there is remittal of disqualification.