March 16, 2016
Digest: Where the new Public Defender preliminarily and briefly represented a judge in a disciplinary proceeding one year ago as a private attorney, the judge may continue to preside over matters involving assistant public defenders, provided the judge can be fair and impartial. The judge need not disclose the prior, non-substantive representation when the assistant public defenders appear.
Rules: 22 NYCRR 100.2; 100.2(A)-(B); 100.3(E); 100.3(F); 22 NYCRR pt 1200, Rule 1.6(a); Opinions 15-08; 14-102; 14-51; 14-11; 08-171/08-174; 08-165; 98-53; 90-43.
The inquiring part-time judge briefly retained a lawyer in connection with a disciplinary proceeding approximately a year ago. The lawyer, whose primary expertise was in an area of law unrelated to professional discipline, prepared and filed a short, non-substantive response to the disciplinary complaint and engaged in approximately five non-substantive telephone and email communications with the judge. The lawyer did not bill the judge for these preliminary activities and was not involved in preparing or submitting the judge’s initial substantive response to the disciplinary agency. Although the judge had advised the disciplinary agency that the attorney represented him/her, the judge soon retained a different law firm to undertake the actual, substantive defense, which required extensive advocacy over a nine-month period. The lawyer who briefly represented the judge subsequently became the Public Defender in the judge’s county, and the judge now asks whether disqualification and disclosure are required when assistant public defenders appear before the judge.
A judge must always avoid even the appearance of impropriety in all of the judge’s activities (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must therefore disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
The Public Defender is the attorney of record on all matters involving his/her office, and presumably has supervisory authority over the assistant public defenders who appear on his/her behalf. Thus, when analyzing conflicts, the Committee generally considers that the Public Defender is appearing before the judge each time an assistant public defender appears (see e.g. Opinions 98-53; 90-43; but see e.g. Opinions 14-11 [judge’s impartiality cannot reasonably be questioned in matters where assistant public defenders appear, merely because the judge has sued the Public Defender in his/her personal and individual capacities]; 08-165 [judge may preside in matters where assistant public defenders appear who are not involved in representing the judge’s child, even though the Public Defender is personally representing the judge’s child]).
The Committee has advised that a judge who was formerly represented by counsel in a now-concluded personal legal matter is disqualified, subject to remittal, for two years when any attorney involved in the judge’s representation appears before the judge (see Opinions 15-08; 08-171/08-174; 22 NYCRR 100.3[F]).
However, in some instances, the Committee has permitted a judge to preside in cases involving an attorney who briefly and preliminarily represented a close relative of the judge. For example, in Opinion 08-165, the Committee advised that a judge could preside in cases involving a District Attorney who initially prosecuted the judge’s child, but was quickly replaced as prosecutor by the District Attorney of a neighboring county. Neither disqualification nor disclosure was required when the District Attorney appeared before the judge because the involvement of the District Attorney in the case was brief and only preliminary in nature (see Opinion 08-165). In Opinion 14-51, the Committee applied the same reasoning where an assistant public defender was briefly assigned to represent the judge’s relative during the current appellate phase of the relative’s criminal case, but was soon discharged in favor of a private attorney. During that brief representation, the assistant public defender ordered the trial transcript and filed a motion to extend the time to appeal but took no further action (see Opinion 14-51). Under those circumstances, given that the assistant public defender performed no substantive work, the Committee concluded that neither disclosure nor disqualification was required (see id.). The Committee has also advised that a judge may preside in matters involving an attorney who was initially appointed as Attorney for the Child in the judge’s relative’s custody proceeding, where the attorney’s involvement in the judge’s relative’s case was brief and preliminary in nature (see Opinion 14-102).
Although these prior opinions do not control the outcome here, the Committee finds them persuasive because the attorney’s representation of this judge was likewise brief and preliminary, involving no substantive work. Moreover, to the extent that the Public Defender received any confidential information as a private attorney during the representation, the Committee assumes he/she is prohibited as a matter of attorney ethics from divulging such information to the assistant public defenders who now report to him/her (see generally 22 NYCRR pt 1200, Rule 1.6).1
Under the circumstances, this judge’s impartiality cannot reasonably be questioned when assistant public defenders appear before the judge, merely because the new Public Defender was previously a private attorney who preliminarily and briefly represented a judge in a personal legal matter one year ago (see 22 NYCRR 100.3[E]; cf. Opinion 14-11 [questioning the “assumption that the judge would be incapable of presiding fairly over criminal charges against a defendant, merely because that defendant is represented by an attorney who is subject to the supervision of an individual who is the judge’s party adversary in civil litigation”]). Thus, provided the judge can be fair and impartial, he/she may preside in matters involving the assistant public defenders and need not make any disclosure of the former representation.
1 The Rules of Professional Conduct define “confidential information” broadly as “information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential” (22 NYCRR pt 1200, Rule 1.6[a]).