September 4, 2014
Digest: (1) A judge whose sibling, grandparent, or grandchild is a criminal defendant need not advise the District Attorney of his/her relationship to the defendant and should not make any unnecessary, voluntary disclosure of the relationship while the litigation is pending. (2) When a private attorney who is currently representing the judge’s sibling, grandparent, or grandchild appears before the judge, the judge is disqualified subject to remittal while the representation is ongoing. For the first two years after the representation is fully concluded, disclosure is mandatory when that attorney appears before the judge but disqualification is in the judge’s sole discretion.
Rules: Judiciary Law §14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-51; 14-27; 12-178; 12-111; 12-102; 11-95; 11-64; 11-151; 11-139; 11-43; 10-192; 10-56; 09-138; 09-55; 08-80; 08-165; 07-18; 06-111; 00-119 (Vol. XIX); 00-68 (Vol. XIX); 97-15 (Vol. XV); 92-60 (Vol. IX); Joint Opinions 08-183/08-202/09-112; 88-120/88-125 (Vol. II); People v Moreno, 70 NY2d 403 (1987).
A full-time judge who presides over felony cases states that his/her second-degree relative1 was recently arrested and charged with a non-felony criminal complaint in a different court within the same jurisdiction where the judge presides. The judge states that the “District Attorney whose assistants prosecute cases before me will therefore be responsible for prosecuting my [relative].” The judge advised his/her relative to retain counsel and provided a list of private attorneys for his/her relative to consider. The judge notes that he/she has not, and will not, communicate or inquire about the matter “from counsel or from anyone in the court system.” The judge asks whether he/she must advise the District Attorney of the familial relationship and if the judge is disqualified from matters in which the judge’s relative’s privately retained criminal defense counsel appears.2
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]). A judge must also disqualify him/herself in a proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).3
The first question, whether the judge must advise the District Attorney of the familial relationship, appears to be a matter of first impression. However, the Committee has advised that a part-time lawyer/judge who is appearing as an attorney in a jury trial should not voluntarily reveal his/her judicial status to prospective jurors during voir dire, even when the judge is motivated by a desire to determine possible bias based on a prospective juror’s past experience in the lawyer/judge’s court (see Opinion 08-80). Here, the inquiring judge appears to have no formal or mandated role in the prosecution or defense of the criminal proceedings against the judge’s relative. Given the same District Attorney’s office that regularly appears in the judge’s court is prosecuting the judge’s relative, there is a risk that the judge’s unnecessary, voluntary disclosure to the District Attorney of his/her familial relationship “may be perceived as an inappropriate invocation of [the inquiring judge’s judicial] status to further the private interests of” his/her relative (Opinion 07-18 see also 12-102; 22 NYCRR 100.2[C]). The judge, therefore, need not advise the District Attorney of his/her relationship to the defendant and should not make any unnecessary, voluntary disclosure of the relationship while the litigation is pending.
The second question, whether the judge is disqualified from matters in which the judge’s second-degree relative’s privately retained criminal defense counsel appears, is likewise a matter of first impression.
The Committee has previously addressed similar issues with respect to counsel for a judge’s first-degree relatives (i.e., a parent or child). For example, the Committee has advised a judge is disqualified, subject to remittal, when an attorney who is presently prosecuting or defending the judge’s child appears before the judge (see e.g. Opinions 11-95 [district attorney’s office prosecuting the judge’s child in a criminal matter]; 08-165 [public defender’s office defending judge’s child in a criminal matter]; 97-15 [Vol. XV] [attorney defending judge’s child in juvenile delinquency proceeding]; 92-60 [Vol. IX] [private attorney defending judge’s child in a traffic violation matter in another court]). The same standard has been applied when an attorney who represents the judge’s parent appears before the judge (see Opinions 12-111 [private law firm representing judge’s parent in an estate proceeding]; 09-55 [attorney who represents the judge’s parents’ closely held corporation]). The Committee has previously advised that after the representation or prosecution ends, there must be disclosure for a two-year period (see Opinions 12-111; 11-95).
Here, the relative is related to the judge in the second degree, i.e., a sibling, grandparent, or grandchild by blood or marriage. As the Committee has previously advised, the second degree of consanguinity is certainly an “intimate and significant family connection” (Opinion 06-111).4 In the Committee’s view, there is a risk that the judge’s impartiality can reasonably be questioned when a private attorney appearing before the judge on behalf of a client is also presently defending the judge’s grandparent, grandchild, or sibling against unrelated criminal charges in another court (see 22 NYCRR 100.3[E]). Therefore, the judge is disqualified until the representation is fully concluded. However, assuming the judge concludes he/she can be fair and impartial, disqualification under these circumstances is subject to remittal (Opinion 00-119 [Vol. XIX] is hereby modified to reflect that the judge is disqualified, subject to remittal, during the attorney’s representation of the judge’s child). Remittal involves three steps:
First, the judge must fully disclose the basis for disqualification on the record. For the judge in the present inquiry, full disclosure means advising the parties that the representation is on-going and/or that it occurred within the last two years, and of the nature of the representation. Second, following such disclosure, and without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding. The judge then may continue to preside.
(Opinion 09-138, citing 22 NYCRR 100.3[F]). Remittal is not available if (a) any party appears without counsel, or (b) the judge does not wish to fully disclose the fact and nature of the representation (see Opinion 12-111), or (c) the judge is not legally or ethically permitted to fully disclose the representation (see e.g. Joint Opinion 08-183/08-202/09-112). For guidance on the extent of disclosure, see Opinion 14-51.
For a two-year period after the representation completely ends and all outstanding fees have been paid, the judge must fully disclose the former representation when an attorney who formerly represented his/her second-degree relative appears before the judge (see Opinion 00-68 [Vol. XIX] [attorney appearing before the judge previously represented the judge’s sibling in a now-settled tort case]). Disclosure is mandatory in lieu of outright disqualification during this period (see id.). Therefore, remittal is not available, and the judge must disqualify him/herself if (a) any party appears without representation (see Opinion 12-111), or (b) the judge does not wish to make full disclosure (see id.), or (c) the judge is not legally or ethically permitted to fully disclose (see e.g. Joint Opinion 08-183/08-202/09-112).
If, after disclosure, a party objects to the judge presiding, the judge may exercise his/her discretion in determining whether to disqualify him/herself after considering all relevant factors (see People v Moreno, 70 NY2d 403 ). As the Committee has advised in other contexts, such factors may include, but are not limited to:
the nature of the instant proceeding [before the judge], the nature of the prior representation by the attorney, as well as its frequency and duration, . . . the amount of work done for the [judge’s relative] by the attorney and the amount of fee, whether the representation was routine or technical or involved the morality of the [judge’s relative’s] conduct, whether there exists a social relationship between the judge and the [judge’s relative’s] former attorney, and whether there are any special circumstances creating a likely appearance of impropriety
(Opinion 10-56, quoting Joint Opinion 88-120/88-125 (Vol. II). The Committee notes that, while these factors are instructive, they may not cover every future fact pattern. Judges may always consult the Committee for further guidance on additional factors that may be relevant to their particular circumstances (see id.).
After the two-year period, the judge need not make any disclosures when the attorney who formerly represented the judge’s relative appears before the judge, unless the judge concludes, in his/her sole discretion, that disclosure is warranted based on the factors set forth above or based on any other relevant circumstances. Because disclosure is not mandated after the two-year period has concluded, the judge is not disqualified from presiding over cases in which the attorney appears, even if another party is appearing without legal representation (see e.g. Opinion 14-27).
Finally, in the Committee’s view, the judge need not disqualify him/herself, or make any disclosure, for other attorneys in the law firm who are not personally involved in representing the judge’s relative in a direct or supervisory capacity – either during or after the representation. (Opinion 12-111 is hereby modified to reflect that disqualification does not extend to attorneys in the law firm who are not involved in representing the judge’s child). As a practical matter, however, “it may be difficult for the judge to know which [attorneys] have worked on the judge’s [relative’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” (Opinion 11-139). The judge may, if he/she wishes, simply choose to disqualify him/herself from all matters involving the law firm: in some situations, this may be the most practical and efficient solution, provided it does not result in excessive disqualifications. The judge may also determine whether an attorney associated with the law firm had any involvement in the judge’s relative’s case by inquiring on the record each time the attorney appears in the judge’s court (see Opinions 11-151; 11-139). Alternatively, in the judge’s discretion:
(A) the judge may invite the attorney who is representing the judge’s relative, or his/her law firm, to provide the judge with a written list of the attorneys who are involved in the judge’s relative’s representation along with written assurance that other attorneys of the firm will be completely insulated from the matter (cf. Opinions 14-27 [judge may, in his/her discretion, invite a private law firm to create an ethical screen or wall for the judge’s former law clerk who is now an associate of the firm]); or
(B) if another attorney from the same law firm appears before the judge and advises the judge that he/she is not involved in the judge’s relative’s case, the judge may direct that attorney, on the record, to advise the judge if the attorney becomes involved in the judge’s relative’s case (cf. Opinion 11-139); or
(C) if another attorney from the same law firm appears before the judge and advises the judge that he/she is not involved in the judge’s relative’s case, the judge may direct that attorney, or his/her law firm, by letter, to advise the judge if the attorney currently appearing before the judge becomes involved in the judge’s relative’s case (cf. Opinions 11-151; 11-139).
Thereafter, if the judge is satisfied that other attorneys at the law firm will be effectively insulated from the judge’s relative’s representation, the judge may rely on this representation and need not disqualify him/herself from all matters involving the law firm, when attorneys who are not personally involved in representing the judge’s relative appear before the judge (cf. Opinions 14-27 [judge may, in his/her discretion, invite a private law firm to create an ethical screen or wall for the judge’s former law clerk]; 11-151 [procedures when the judge’s law clerk’s spouse is an assistant district attorney]; 11-139 [procedures when a public defender’s office represents the judge’s child]).
1 A second-degree relative is a sibling, grandparent, or grandchild (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see Opinion 12-178; 22 NYCRR 100.3[E][d]-[e]).
2 The Committee notes the inquirer has not asked whether disclosure or disqualification is required when the attorney’s law firm partners or associates (if any) appear before the judge; and, therefore, the Committee declines to address the issue here (but see Opinion 12-111).
3 There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][a]-[f]) or Judiciary Law §14. Where, as here, it appears that none of those enumerated circumstances apply, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E]). If disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).
4 The Committee notes that Opinion 06-111 involves the distinct situation when the judge’s second-degree relative is employed as an attorney in a private law firm, and a different attorney from the same law firm appears before the judge (see also Opinions 11-43; 10-192). When a law firm colleague of the judge’s relative appears before the judge, it can be presumed that the judge’s relative will share in the fees earned by his/her law firm and thus has a financial interest in the case before the judge. By contrast, in the present inquiry, the judge’s relative is merely a client of the law firm, and thus has no financial interest in the law firm’s other cases.