Opinion 14-10


March 13, 2014

 

Digest:         A judge who formerly served as the District Attorney for the county where the judge presides (1) is disqualified from presiding over any cases that were pending in the District Attorney's office during the judge's term as District Attorney and remittal is unavailable, but (2) may preside over matters involving individuals who were previously investigated or prosecuted by the District Attorney's office during the judge's term as District Attorney, subject to certain limitations.

 

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(I); 100.3(F); Opinions 14-07; 13-106; 12-36; 11-127; 11-26; 10-86; 10-70; 07-30; 07-23; 07-14; 03-87; 98-114 (Vol. XVII); 96-139 (Vol. XV); 95-86A (Vol. XIII); 93-116 (Vol. XI); 91-154 (Vol. VIII); People v Moreno, 70 NY2d 403 (1987).


Opinion:


         A judge who previously served as the District Attorney for a particular county asks whether he/she may preside in a Family Court matter, where the judge has become aware that one of the litigants was previously charged with a misdemeanor by the District Attorney’s office during the judge’s tenure there. The judge states that he/she “had no knowledge of that criminal matter” at the time, and, although the matter remains open, the judge has “no information about the alleged facts” underlying the misdemeanor charges.1 With respect to other cases, where the inquiring judge “ha[s] knowledge” that a litigant in a Family Court matter was convicted of criminal charges during the judge’s tenure as District Attorney, the judge further asks whether he/she must “place on the record that I was District Attorney at the time of such conviction and, if so, should I give the party and/or party’s attorney an opportunity to be heard? May I proceed with the Family Court matter as long as I place on the record that I could be fair and impartial in regard thereto?”


         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]). A judge must therefore disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge must disqualify him/herself [not subject to remittal, 22NYCRR 100.3(F)] when “the judge knows that ... the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][I]).


         The Committee notes that the inquiring judge has provided no details about the nature of the Family Court cases in which he/she will preside, or about any possible conflicts that the inquiring judge expects to encounter. However, as in Opinion 14-07, there are, broadly speaking, three categories of cases in which a litigant who was previously prosecuted by the District Attorney’s office during the judge’s tenure as District Attorney might appear before the judge. Specifically, the litigant might appear before the judge (1) in the same (criminal) case that was previously pending before the District Attorney’s office, (2) in an entirely unrelated case that has no substantial connection with the prior criminal case that was pending before the District Attorney’s office, or (3) in a case that has some materially relevant connections with the prior criminal case.


1. Same Case


         The Committee has advised that “a judge who had been the District Attorney should not preside in any criminal case that was pending as a prosecution or as a matter under investigation by the District Attorney’s Office” during the judge’s tenure as District Attorney (Opinion 03-87; see also 22 NYCRR 100.3[E][1][b][I]).2 Because he/she is “the official in charge and under whose authority proceedings were conducted,” disqualification is required for all such cases charged or investigated during the judge’s prosecutorial tenure, “[r]egardless of whether the inquirer had actual knowledge of or involvement in a particular matter” (Opinion 03-87).3


         However, the Committee notes the inquiring judge asks only about sitting in Family Court cases that may come before him/her. While the Committee assumes there would be few (if any) instances in which a Family Court case would once have been “pending as a prosecution or as a matter under investigation” in the District Attorney’s office during the judge’s term as District Attorney, if this situation did arise, the judge would be disqualified from presiding in the case, without the possibility of remittal (see 22 NYCRR 100.3[E][1][b][I]; 100.3[F]; Opinion 03-87).


2. Entirely Unrelated Case

 

         Similarly, a judge is not barred from presiding over all matters involving a particular individual, based solely on the fact that the individual was previously a criminal defendant in a matter investigated or prosecuted by the inquiring judge or an assistant district attorney under his/her supervision (see Opinions 14-07 [similar conclusion for judge who is a former high-ranking employee of the county attorney’s office]; 98-114 [Vol. XVII] [the fact that an attorney had been sued by the judge when the judge was District Attorney does not require the judge to disqualify him/herself in proceedings in which the attorney appears, provided the judge believes that he or she can be impartial]).


         To the contrary, where the case currently before the judge is not one that was pending as a prosecution or as a matter under investigation in the District Attorney’s office during the time of the judge’s tenure as District Attorney and where there is no substantial connection between the circumstances underlying the criminal charges and the facts and legal issues of the matter currently before the judge, the Committee believes that the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) solely on the basis of his/her prior role as District Attorney, and the judge therefore has no obligation to disqualify him/herself or to disclose the prior criminal case or his/her connection to it (see Opinion 14-07).4


         Under such circumstances, even if the prior or pending criminal matter is disclosed, the judge may preside unless the judge doubts his/her ability to be fair and impartial, and the judge is not ethically required to disqualify him/herself even at a party’s request (see generally Opinions 14-07; 10-70; People v Moreno, 70 NY2d 403 [1987]; see also Opinion 13-106 [discussing the effect of a “purely prophylactic” disclosure]).


3. Some Connections Between the Cases


         The most difficult scenario is when the inquiring judge or his/her assistant district attorneys previously investigated or brought charges against a particular individual and the facts of the prior criminal prosecution appear to have some direct relation or material relevance to the Family Court case currently before the judge.5


         In the Committee’s view, no appearance of impropriety ordinarily results when a former District Attorney in his/her present judicial capacity is asked to consider matters of public record regarding a litigant’s prior criminal history or convictions (cf. Opinion 11-26 [noting that “former prosecutors who become judges may preside over criminal matters”]). Where the judge is learning and considering such facts in his/her judicial capacity, just as any other judge would, the Committee believes that as long as the judge can be fair and impartial, he/she may preside over the matter.


         However, if the inquiring judge knows or becomes aware the judge or his/her assistant district attorneys previously investigated, charged, or prosecuted a litigant currently appearing before the judge, and if the judge also concludes the facts and circumstances of the prior criminal matter are materially relevant to the Family Court case before the judge, the Committee believes the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the criminal proceeding, in writing or on the record.


         In deciding if he/she can be fair and impartial in the Family Court matter, the judge should consider such factors as: the nature and extent of the judge’s involvement in the criminal proceeding; whether the judge is aware of relevant and material non-public information about the litigant due to his/her prior employment; and whether the judge will be able to decide the Family Court case based solely on the admissible evidence and the permissible arguments and considerations presented in the proceeding before the judge. Even if a party then objects, the judge may sit as long as he/she concludes he/she can be fair and impartial in the present proceeding (see generally People v Moreno, 70 NY2d 403 [1987]).


         Because disclosure is required in lieu of outright disqualification, the judge must disqualify him/herself if any litigant is appearing without counsel, and remittal is not permitted (see e.g. Opinions 12-36; 11-127).


         In addition, if the judge concludes that he/she is not legally permitted to make the ethically mandated disclosure, he/she must simply disqualify him/herself from the matter (cf. Opinion 10-86 [remittal of disqualification is not available where disclosure of the judge’s reason for disqualification would breach the lawyer’s right to confidentiality in the disciplinary process]). 



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     1 The judge explains that he/she “had no actual knowledge” of “many matters” of a similar nature, which were, it appears, routinely handled by assistant district attorneys even though the inquiring judge remained the attorney of record.


     2 However, a former District Attorney may immediately hear criminal cases that “aris[e] after termination of [the judge’s] status as the District Attorney” (Opinion 03-87; cf. Opinion 95-86A [Vol. XIII] [noting that “all of the indictments that were filed while [the inquiring judge] was District Attorney have been resolved”]).


     3 A former assistant district attorney, by contrast, is only barred from adjudicating “cases indicted, or begun by an arrest, while the judge was still a member of the district attorney’s staff, ... if the judge in any way participated personally in the cases” (Opinion 93-116 [Vol. XI] [emphasis added]; see also Opinions 07-30; 07-23; 07-14; 96-139 [Vol. XV]; 91-154 [Vol. VIII]).


     4 Of course, the inquiring judge must not disclose details of his/her former criminal investigations, charges, or convictions except as permitted by law.


     5 Although the judge does not provide any details about the possible conflicts that he/she anticipates, the Committee notes that Family Court cases might include neglect and abuse proceedings, custody and visitation proceedings, and family offense proceedings (cf. Opinion 14-07). In each of these kinds of proceedings, it is conceivable that the judge might be asked to consider a litigant’s prior conviction in making a determination.