Opinion 16-163/16-170

December 8, 2016

Please Note: As of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, i.e., where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] 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,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]).

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A full-time judge who is both a former assistant public defender and a former private law firm partner, and whose former law firm colleague supervises all attorneys in the Public Defender’s office, is disqualified, subject to remittal, from all cases in which the Public Defender’s office appears for two years following complete termination of the financial and business relationship between the judge and his/her former law firm. (2) Once the two-year period is over, the judge may preside over cases in which the Public Defender’s office appears, provided he/she had no involvement in the case and was not the attorney of record. (3) However, the judge is perpetually disqualified, without the possibility of remittal, for all cases in which he/she had any involvement whatsoever as an attorney before assuming the bench.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i)-(ii); 100.3(F); Opinions 16-130; 16-36; 15-211; 15-126; 15-51; 14-47; 13-64; 13-62;11-45; 09-100; 08-87; 07-30; 96-91; 96-36.

Opinion:

Before assuming judicial office, the inquiring full-time judge was both an assistant public defender and a partner at a private law firm. One of his/her former law firm colleagues, who was “of counsel” to the firm, also serves as the Deputy Public Defender. The judge states this high-ranking position is second-in-command and “supervises all of the attorneys in the Public Defender’s office.” Under these facts, the judge asks if he/she may preside in matters involving the Public Defender’s office.

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 when the judge knows “the judge served as a lawyer in the matter in controversy” or “a lawyer with whom the judge previously practiced served during such association as a lawyer concerning the matter” (22 NYCRR 100.3[E][1][b][i]-[ii]). Moreover, where a judge previously served as a lawyer in the matter in controversy, disqualification is not subject to remittal (see 22 NYCRR 100.3[F]; cf. Judiciary Law § 14 [“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding … in which he has been attorney or counsel”]).

Ordinarily, a judge who is a former assistant public defender may preside in cases handled by the Public Defender’s office, if he/she had absolutely no involvement in the case and was not the attorney of record (see Opinions 15-211 [disqualification applies to “any matter in which he/she participated in any way, including minimally, … or as a supervising attorney”]; 07-30; 96-91).¹

However, on assuming judicial office, a judge is also disqualified, subject to remittal, in all matters involving his/her former law firm partners and associates for two years after the relationship completely ends (see Opinions 15-126; 11-45; 00-63; cf. 22 NYCRR 100.3[E][1][b][ii]). For this purpose, the “of counsel” relationship is “analogous to that of an associate in a law firm” (Opinion 08-87; see also e.g. Opinions 09-100 [“the Committee has construed the term ‘associate’ more broadly than the traditional notion of an associate in a law firm”]; 96-36 [“it is apparent that ‘associate’ is broadly construed and would include members of a law firm in which the inquiring part-time judge is ‘Of Counsel’”]). The two-year period is calculated from the time when the financial and business relationship between the judge and his/her former law firm “completely terminates,” including “final payment of any fees pending or owed between them” (Opinion 15-126).

Accordingly, because the judge’s former law firm associate is involved with all cases in the Public Defender’s office in a supervisory capacity, the judge is disqualified, subject to remittal, from all cases in which the Public Defender’s office appears during the two-year period (see Opinions 15-126; 11-45). After the two-year period elapses, the judge may preside over cases in which the Public Defender’s office appears, provided he/she had no involvement in the case (see Opinions 15-211; 07-30; 96-91). However, if the judge had any involvement whatsoever in a particular case as a lawyer, he/she may not preside; disqualification on this basis is not remittable and does not expire (see Opinions 15-126; 14-47; 22 NYCRR 100.3[F]).

As a reminder, a judge is also 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), 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).

Note on Remittal

Finally, for convenience, the Committee here repeats basic principles and procedures concerning remittal. As noted in Opinion 13-64 (citations omitted):

Rule 100.3(F) forbids remittal of disqualification in four scenarios. That is, remittal is prohibited if the judge: (1) has a personal bias or prejudice concerning a party; (2) knows that he/she served as a lawyer in the matter in controversy; (3) knows that he/she served as a material witness concerning the matter in controversy; or (4) knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person, is a party to the proceeding. Because remittal is not available in these circumstances, the judge must disqualify him/herself from the proceeding.

In addition, the Committee has advised that remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record.

As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:

As always, 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 The Committee has not applied Section 100.3(E)(1)(b)(ii) to a judge’s former public sector colleagues.