Opinion 04-100

October 28, 2004

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:         A judge of the drug court may not preside over a defendant’s participation in the drug treatment court program, where the judge’s son represented defendant in the underlying criminal case, even if the son’s involvement ended at the plea and sentencing stage.

Rule:            22 NYCRR 100.3(E)(1)(e), 100.3(F); Opinion 01-07 (Vol. XIX).

Opinion:

         A drug court judge asks whether recusal is necessary in the case of a - now self-represented - defendant’s participation in the drug treatment court program, where the judge’s son represented the defendant in the underlying criminal case, and whose involvement ended at the plea and sentencing of the defendant to the drug court program.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct provides that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. Such an instance is illustrated by subsection (e), in which “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 person, is acting as a lawyer in the proceeding.” Notwithstanding the fact that the judge’s son is no longer acting as an attorney in the proceeding, the situation is such that the judge’s impartiality may be questioned because of the familial relationship and, in our opinion, recusal should be exercised. Furthermore, we note that the defendant is now appearing pro se. Under such circumstances, it is our view that, even if the judge feels that he/she can be impartial, it would be inappropriate to impose upon a pro se defendant the burden of determining whether to consent to the judge’s continued participation under the remittal procedures of section 100.3(F). Thus, remittal of disqualification pursuant section 100.3(F) should not be available in this situation. See Opinion 01-07 (Vol. XIX).