Opinion 11-152(A)

April 16, 2012

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).

Dear:

         This responds to your inquiry (11-152[A]) asking about your ethical obligations in light of the transcription services your secretary provides to local law firms and local government offices on non-court time.

Question One

         “Would the committee be willing to reconsider the mandatory recusal of Opinion 97-127 and substitute instead a rule that would require a judge to insulate a secretary’s non-court work from cases assigned to the judge? I would note that in 1997 when Opinion 97-127 was announced, transcripts were not nearly as common as they are today since courts of record generally had stenographers and justice courts generally had no record or stenographers. Now audio records are the norm at least in Family Courts and local justice courts and the number of transcripts produced is many folds larger.”

In response to your first question, the Committee adheres to and reaffirms Opinion 97-127.

Question Two

         “Assuming that the committee does not reconsider the mandatory recusal rule of Opinion 97-127, how long does the obligation to disclose and recuse continue after my secretary’s completion of work for an attorney? The opinion is silent on that issue.”

Disqualification is required while your secretary is performing outside work for an attorney appearing before you. Once the work is completed and the fees are paid, disqualification is no longer necessary. Your disqualification is subject to remittal, unless a party appears without representation. Remittal is a three step process (Opinion O9-138 relying on 22 NYCRR 100.3[F]):

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 his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

Question Three

         “The Rule (22 NYCRR 100.3[F]) requires in the case of remittal of disqualification that the parties agree on the record to remittal. Is remittal necessary from the Attorney for the Child in Family Court proceedings?”

Remittal, when permitted, requires the consent of all parties who have appeared and their counsel. Therefore, the Attorney for the Child also must consent to remittal.

         This response does not address any administrative issues that may need to be resolved if your secretary’s part-time employment interferes with the proper performance of judicial duties.

         Enclosed, for your convenience, is Opinion 09-138 which addresses the issue of remittal.

                                                 Very truly yours,

                                                 George D. Marlow, Associate Justice

                                                 Appellate Division, 1^st Dept. (Ret.)

                                                 Committee Chair

Encl.