Opinion 17-150


December 7, 2017

 

Digest:     (1) A new full-time judge who previously represented clients as a non-supervisory conflict defender and as a private attorney:

(a) is permanently disqualified, without the possibility of remittal, in any case where he/she previously participated as an attorney;

(b) is disqualified, subject to remittal, from all matters involving his/her former clients, for two years after the relationship completely ends;

(c) is disqualified, subject to remittal, from matters involving individuals he/she recognizes as clients of his/her former law partner, for two years after assuming the bench; and

(d) may preside in matters involving his/her prior conflicts office colleagues, provided the judge had absolutely no involvement in the case and was not the attorney of record, assuming the judge can be fair and impartial.

(2) A judge whose second-degree relative serves as a non-supervisory assistant public defender:

(a) is disqualified, without the possibility of remittal, from cases in which his/her relative personally appears in the courtroom as counsel;

(b) is disqualified, subject to remittal, in cases where his/her relative participates as counsel behind the scenes but does not personally appear in the courtroom; and

(c) may preside in matters involving his/her relative’s public defender office colleagues, provided the relative has absolutely no involvement in the case and is not the attorney of record.

(3) Other judges of the court may preside in matters where their co-judge’s second-degree relative appears as counsel, assuming they can be fair and impartial.

(4) A judge who knows he/she must disqualify him/herself in a particular case must do so at the outset and may not first conduct an arraignment or sign a search warrant application.

 

Rules:       Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i)-(ii); 100.3(F); Opinions 17-75; 17-19; 16-163/16-170; 16-114; 16-63; 16-36; 15-211; 15-164; 15-126; 15-51; 15-18; 15-06; 14-186; 14-47; 14-36; 14-22; 14-36; 13-106; 13-64; 13-62; 13-54; 12-154; 12-25; 11-131; 11-106; 11-57; 10-146; 09-233; 09-223; 09-100; 09-97; 08-182; 08-108; 08-78; 07-216; 07-114/07-120; 07-30; 06-111; 02-110; 98-159; 98-29; 97-82; 97-39; 96-91; 93-116; 93-08; 90-91; 90-44.


Opinion:


       A supervising judge who is responsible for assigning several judges their annual court calendars, including “a criminal arraignment intake and calendar,” asks about permissible assignments for an incoming full-time judge. The new judge “currently practices extensively” in the court, representing criminal defendants both privately and as a conflicts attorney with the county’s assigned counsel’s office. Although the new judge is nominally a sole practitioner, he/she and a relative within the second degree of relationship1 share the same private law office address, cover court appearances for each other, and maintain a public website for a “Law Office” with both their names.


       As for the incoming judge’s public sector employment, the assigned counsel’s office represents defendants who would ordinarily be eligible for representation by the public defender’s office, when the public defender’s office has a conflict. The office is staffed by approximately five part-time attorneys and one supervisor; the judge has no supervisory responsibilities.


       The new judge’s second-degree relative will serve as the regularly assigned assistant public defender for the court, whether before the new judge or his/her co-judges, except where the attorney ethics rules prohibit such representation.


       A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must disqualify him/herself when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). However, if the judge doubts his/her ability to be fair and impartial in a particular matter, he/she must not preside.


1. Same Case: Prior Involvement as an Attorney in the Case Before the Judge

 

       A judge may not preside in a case if “the judge knows that (i) the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14). Disqualification on this ground is not subject to remittal and does not expire (see 22 NYCRR 100.3[F]; Opinions 16-163/16-170; 15-211).   


       Accordingly, where the new judge knows he/she previously participated as a lawyer in a particular case “in any way, including minimally,” he/she is permanently disqualified from presiding in that case (Opinion 15-211). The judge must therefore disqualify him/herself from all cases in which he/she had any involvement whatsoever as an attorney before assuming the bench, and must do so at the outset, as soon as he/she becomes aware of the conflict (see e.g. Opinion 09-223).


2. Former Clients


       A judge is disqualified, subject to remittal, for two years in matters involving former clients of the judge or his/her former law firm (see e.g. Opinions 16-36; 15-51; 14-47; cf. 22 NYCRR 100.3[E][1][b][ii]), although disclosure may be permitted in lieu of outright disqualification during this period if the former client appears as a witness in a jury trial (see Opinion 13-62). The two-year period does “not begin to run until the business and financial connection” with the former client “has finally ended,” including final payment of all fees pending or owed to the judge from the former representation (Opinion 15-126). After the two-year period, the judge has no further obligation with respect to the former client; the decision of whether to disclose or recuse is confined solely to the judge’s discretion after considering all relevant factors (see Opinion 15-51).


       While a judge may not recall every former client within the past two years, he/she must adopt “reasonable procedures to avoid presiding over matters” involving recent former clients (see Opinion 13-54). Thus, for a new full-time judge whose former law firm represents “thousands of clients..., most of which are unknown to the judge” (Opinion 16-36), we emphasized that the two-year disqualification period for former clients of the judge and his/her firm “applies only to clients the judge actually recognizes as current or former clients of the firm, or if such representation by the judge’s former firm is otherwise brought to the judge’s attention” (id.). We advised “it would be unduly burdensome and unnecessary for the judge to run every party appearing before him/her through the law firm’s database to determine if a client relationship exists or ever existed during the judge’s former employment with the firm,” because the judge’s impartiality cannot reasonably be questioned when “the judge is entirely unaware” of the representation (id.).


       Accordingly, the incoming full-time judge must take reasonable measures to avoid presiding in matters involving his/her former clients for two years after assuming the bench. If there are any outstanding fees payable to the judge for legal work he/she previously performed for a particular client, the two-year period does not start to run until the financial and business connection with the former client has completely terminated. The judge’s disqualification during this two-year period for matters involving his/her former clients is subject to remittal, provided no party is appearing without counsel.


       The judge’s second-degree relative was the judge’s partner or associate within the meaning of our prior opinions, as they covered court appearances for each other from time to time (see Opinions 16-63; 09-100). Therefore, the judge is also disqualified, subject to remittal, from matters involving clients of his/her second-degree relative’s private practice for the first two years after assuming the bench. We particularly emphasize here, however, that the judge has no obligation to consult his/her relative about the identities of his/her private practice clients (see Opinion 16-36). That is, the judge’s obligation “applies only to clients the judge actually recognizes as current or former clients” of his/her second-degree relative’s private practice, or if such representation by the judge’s relative “is otherwise brought to the judge’s attention” (id.).


3. Former Public Sector Colleagues in the Conflicts Office


       We have advised that a judge is disqualified, subject to remittal, from matters in which his/her former private law firm partners or associates appear, “for two years from the termination of the relationship or final payment of any fees pending or owed between them, whichever is later” (Opinion 15-126; cf. 22 NYCRR 100.3[E][1][b][ii]).


       Significantly, the Committee “has not applied Section 100.3(E)(1)(b)(ii) to a judge’s former public sector colleagues” (see Opinion 16-163/16-170 fn 1). A lawyer’s employment in a government law office differs significantly from employment in a private law firm, in that it is unlikely to create any appearance of a financial or business relationship with his/her public sector colleagues (see e.g. Opinion 17-75 fn 1; 16-114).


       Thus, the incoming judge’s status as a former non-supervisory conflicts attorney, without more, does not require the judge to disqualify him/herself from all matters involving the conflicts office, provided the judge had absolutely no involvement in the case and was not the attorney of record (see Opinions 16-163/16-170; 15-211; 14-22; 07-30; 96-91). Rather, the judge may preside in such matters involving his/her former conflicts office colleagues, provided he/she can be fair and impartial.


4. Second-Degree Relative Involved as an Attorney


       A judge is disqualified when the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Disqualification on this ground is not one of the four scenarios in which the Rules forbid remittal (see 22 NYCRR 100.3[F]; Opinions 17-19; 13-64).


       In the past, we have previously advised that provided the judge can be fair and impartial and no party is appearing pro se or ex parte, remittal of disqualification is permissible when the judge knows a relative within the second degree is acting as a lawyer in a matter (see e.g. Opinions 11-131; 08-182; 08-78; 07-216; 07-114/07-120; 06-111; 90-44).


       However, on further consideration, we believe this rule is somewhat too permissive in some contexts.  We have observed that relationships within the second degree, such as siblings, parents, children, grandparents, and grandchildren, “denot[e] a more intimate and significant family connection” (Opinion 06-111).  There is too great an appearance of impropriety if a judge presides in a matter in which a relative within the second degree personally appears in the courtroom, even if all parties and their counsel consent following full disclosure on the record.  Accordingly, Opinions 15-18; 15-06; 14-186; 13-106; 11-131; 11-106; 11-57; 10-146; 08-182; 08-78; 07-216; 07-114/07-120; 06-111; 02-110; 98-159; 98-29; 97-82; 97-39; 93-116; 93-08; 90-91; and 90-44 are modified to prohibit remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. 


         However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.


         We will also propose a rule change to the Administrative Board to make this distinction explicit in the Rules.


5. Second-Degree Relative’s Public Defender Office Colleagues


       A judge is disqualified, subject to remittal, from presiding when other lawyers from his/her second-degree relative’s private law firm appear (see e.g. Opinions 08-108; 07-114/07-120; 06-111).


       However, we have applied a different rule when a judge’s first or second-degree relative is an attorney in a government law office; if the judge’s relative is not involved in the matter personally or as a supervisor, and is not the attorney of record, the judge may preside without disclosure or disqualification in other matters involving the same office (see e.g. Opinions 08-182; 15-164; 11-131).


       Thus, the incoming full-time judge may preside in matters involving the Public Defender or other assistant public defenders, provided his/her second-degree relative is not involved in the matter personally or as a supervisor and is not the attorney of record (see id.; 22 NYCRR 100.3[E][1][e]).


6. Presiding in Matters Involving a Co-Judge’s Second-Degree Relative


       The supervising judge asks whether other judges of the court may hear cases where the new judge’s second-degree relative appears as an attorney. They may. A judge need not disclose that an attorney appearing before him/her is a first-degree relative of the judge’s co-judge or disqualify him/herself, as the judge’s impartiality cannot reasonably be questioned solely on that basis (see e.g. Opinion 12-154). Since a second-degree relative is more distant than a first-degree relative, the judges’ impartiality also cannot reasonably be questioned here. Therefore, they need not disclose or disqualify when their co-judge’s relative appears.


7. Special Considerations for Arraignments and Search Warrant Applications


        Finally, the supervising judge asks how to apply the above-referenced principles when the incoming judge is assigned to an arraignment part or calendar.


       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” (Opinion 12-25). Thus, a judge who disqualifies him/herself from all cases involving a particular attorney must do so at the outset of each case, and may not conduct an arraignment before doing so (see Opinion 09-223). We note that remittal is not available if any party is appearing without counsel, such as when an arraignment is conducted without both a prosecutor and defense counsel present (see Opinion 14-36 fn 1).


       Remittal is also unavailable in ex parte matters, such as search warrant applications (see Opinions 09-97; 07-216).


Reminder on Remittal Procedures


        As noted in Opinion 16-163/16-170 (citations omitted):

 

remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, 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 disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.



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1 Relatives within the second degree of relationship include parents, grandparents, siblings, children, and grandchildren (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, we do not distinguish between relatives by blood or by marriage.