December 11, 2014
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 may preside in matters involving the law firm that employs the spouse and first-degree relative of a principal court attorney who works exclusively for the judge, but must insulate the court attorney from the firm’s cases and disclose the insulation. Where the judge determines that a party is legally in default, the judge need not disclose such insulation to the defaulting party, and need not attempt to discern whether a defaulting party is represented by counsel.
Rules: 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); Opinions 14-78; 13-132; 13-26; 12-178; 12-72; 08-83; 07-108.
A judge asks whether it is permissible to preside in matters involving a law firm that employs certain close relatives of a principal court attorney who is assigned to the judge’s court.1 The court attorney is not the judge’s personal appointee. The firm employs the court attorney’s spouse as a paralegal, and the court attorney’s first-degree relative as an attorney.2 Neither of these employees will personally appear before the judge. The inquiring judge also advises the Committee that a very large percentage of parties named in cases the judge hears legally default.
A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E]).
The Committee has advised that a judge need not disqualify him/herself when an attorney, who either represents the judge’s law clerk or secretary or is a relative within the fourth degree of relationship to the judge’s law clerk or secretary, appears in the judge’s court (see Opinion 13-26). Instead, the judge must disclose the relationship and state that he/she will insulate the law clerk or secretary from the attorney’s and the attorney’s law firm’s cases (id.). Thereafter, if a party objects to the judge’s continued participation in the case, the judge has the sole discretion to decide whether to recuse (id.).
Although the principal court attorney at issue here is not the inquiring judge’s personal appointee, it appears he/she works exclusively for the inquiring judge. Moreover, the law firm at issue employs not one, but two of the court attorney’s close relatives– including the court attorney’s spouse (cf. Opinion 12-72 [noting that spouses “ordinarily reside in the same household and maintain both an emotional and financial relationship”]). Therefore, under these circumstances, the Committee concludes the principles stated in Opinion 13-26 apply in this inquiry. Thus, the judge may preside when the law firm appears, but he/she must insulate the principal court attorney from the firm’s cases and must also disclose the insulation (see Opinion 13-26).
The inquiring judge has further asked how mandatory disclosure of insulation will affect proceedings in the court, where a large percentage of interested parties, whether represented by counsel or unrepresented, either fail to appear at all, or default after filing an initial notice of appearance. Where disclosure is mandated in lieu of outright disqualification, the Committee has advised that “the judge must disqualify him/herself if (a) any party appears without representation, or (b) the judge does not wish to make full disclosure, or (c) the judge is not legally or ethically permitted to fully disclose” (Opinion 13-132 [citations omitted]). However, the Committee has also previously advised that where a party “is legally in default[,] whether because the interested party has failed to appear at all, or because the interested party appeared but subsequently failed to file a pleading, or otherwise,” a judge is not ethically required to inform the defaulting party of the basis of the judge’s disqualification, and the defaulting party’s consent is not required for remittal of disqualification (see Opinion 14-78). Indeed, the Committee emphasized that “Section 100.3(F) requires consent only from “the parties who have appeared and not defaulted and their lawyers” (Opinion 14-78, quoting 22 NYCRR 100.3[F] [emphasis added]).
The Committee believes similar rules apply here, to the requirement of disclosing that the judge insulated the court attorney. The judge need not disclose the insulation to any party legally in default, and he/she need not try to discern whether any defaulting parties are represented by counsel.
1 The inquiry was jointly submitted by two judges, but the Committee will treat the inquiry as made solely by the judge whose prospective conduct is at issue (see e.g. Opinions 08-83; 07-108). The Committee also notes that one or more of the employment relationships described in this opinion had not yet commenced as of the date of the inquiry. For simplicity, the Committee refers to the contemplated employment relationship(s) in the present tense.
2 Relatives within the first degree of relationship include parents and children (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see Opinion 12-178 n1).