October 19, 2006
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: Under the circumstances presented, the social relationship between the judge and an attorney is sufficiently close as to require recusal in matters in which the attorney appears. Such recusal is subject to remittal unless a party is self-represented, in which event remittal is not available.
Rules: 22 NYCRR 100.2(B); 100.3(E)(1); 100.3(F); Opinion 01-07 (Vol. XIX).
The inquiring Family Court judge seeks the advice of the Committee about whether he or she must disclose a social relationship with an attorney who appears before the judge as law guardian in Persons in Need of Supervision (“PINS”) cases.
The judge states that the attorney lives in another part of the city in which they both reside. Once or twice a month, the attorney drives to the judge’s residence and they walk their dogs together. They have also dined at a restaurant a few times each year during the past two to four years, and have gone to the beach together. The attorney has also driven the judge, who is running for re-election, to campaign events and has attended social functions at the judge’s residence.
Under the circumstances set forth by the judge, we are of the opinion that the judge should exercise recusal in matters in which the attorney appears. The continuing relationship appears to be sufficiently close so as to give rise to a perception that the judge’s judicial conduct or judgment may be influenced by their social relationship and thus may call into question the judge’s impartiality. 22 NYCRR 100.2(B); 100.3(E)(1).
Such recusal is subject to remittal pursuant to 22 NYCRR 100.3(F), unless one of the parties is self-represented, in which case there should be no remittal. E.g., Opinion 01-07 (Vol. XIX).