Opinion 04-78

September 14, 2004

Digest:          (1) Where a Family Court judge serves as chairperson of an advisory committee dealing with child protective issues, together with experts in that field, and such experts appear as expert witnesses in such cases, the judge should make disclosure and recuse upon request; (2) where one of the parties is appearing pro se, the judge should recuse; (3) where it is not feasible or possible to transfer such a case to another Family Court judge, the judge may preside, provided that the judge feels that he or she can be fair and impartial.

Rules:           22 NYCRR 100.2(A); 100.3(E) (1); Opinion 03-101.

Opinion:

           The two inquiring Family Court judges have been appointed co-chairpersons of an Advisory Committee for a new program sponsored by the Permanent Judicial Commission on Justice for Children. The Advisory Committee “focuses on addressing the physical emotional, and mental health needs of foster children who

are the subjects of child protective proceedings in Family Court.” Among its members are “a variety of experts in the medical, child development, and mental health fields with particular expertise in child protective issues.”

           The inquirers state the problem confronting them, as follows:

Although the committee will not include in its deliberations any discussion of the substance of any case, either past or pending, our concern is that some members of the committee are currently, or may prospectively be expert witnesses appearing in cases before us and that our role in chairing this committee may present an ethical issue. In one recent case where a committee member appeared as an expert witness, the Judge presiding advised all parties on the record that the expert is a member of the Advisory Committee, and provided counsel the opportunity to confer with their clients and raise any objections. We are prepared to continue to make this statement in any future matters in which a Committee member testifies.

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                      Are there any further actions we must take to ensure

                      that there is no appearance of impropriety.?

           In our view, the on-going continuing relationship and contact between the judges and the expert witnesses in carrying out the work of the Advisory Committee does raise valid ethical concerns. The Committee’s sponsorship by a permanent governmental commission and its apparent programmatic focus directly related to matters of judicial decision-making are of sufficient weight to give rise to possible perceptions of partiality or predisposition when experts serving on the Advisory Committee appear as witnesses in adversarial proceedings. While this set of circumstances does not necessarily give rise to a per se requirement of recusal it does create an occasion for judicial caution. See, e.g. Opinion 03-101 [invitations to expert witnesses to serve as guest lecturers at a law school class on matrimonial law taught by judges before whom such experts appear regularly in court, should be extended by the law school and not the judge.]

           Accordingly, in order to avoid any claims of partiality or predisposition we are of the opinion that the judge who is presiding should make disclosure of the relationship, and, upon request of a party exercise recusal. If one of the parties is appearing pro se the judge should recuse. 22 NYCRR 100.2(A); 100.3(E)(1).

           The advice now being rendered should not create any administrative difficulties in a large urban county such as the one where the inquirers serve. However, there are counties, with for example just one Family Court judge who may happen to also be serving on such a committee. In such situations, if it is not feasible or possible to have another judge consider the matter the judge may have to invoke the “rule of necessity” and not recuse, assuming, of course, that the judge believes he or she can be fair and impartial.

           Finally, this opinion is not intended to articulate rules that are necessarily applicable to all committees or commissions or other professional activities involving both judges and expert witnesses. It is intended to address the specific concerns expressed by these particular inquiring judges and assist them in meeting those concerns under the particular circumstances presented.