December 3, 2015
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: In general, a judge may preside in a case even though the judge’s secretary once provided freelance transcription services at an earlier stage while it was pending in another court. However, the judge is disqualified, subject to remittal, if an attorney who is paying for the transcription services appears before him/her. That obligation continues until the work is completed and all fees are paid. Neither disclosure nor disqualification is required when the secretary’s services are paid for by the Unified Court System.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 15-151; 15-52; 11-152(A); 97-127.
A full-time judge’s secretary offers freelance transcription services in another court1 and is on the court system’s list of transcription providers.2 When hired, the he/she transcribes audiotapes of criminal cases in the other court and is paid by the court system or the defendant’s attorney. The judge asks if he/she may preside if the secretary provided transcription services in the other court, and if it matters who paid his/her fee.3
A judge must always avoid even the appearance of impropriety (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 must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
In the Committee’s view, that the judge’s secretary provided transcription services in a previous stage of a case now before the judge does not, without more, create a reasonable basis to question the judge’s impartiality nor does it create an appearance of impropriety (see 22 NYCRR 100.3[E]).
By contrast, an ongoing business or financial relationship between an attorney and the judge’s secretary may raise some ethical concerns. Nearly two decades ago, the Committee advised that a judge must exercise recusal whenever any attorney or firm that uses the judge’s secretary’s typing services appears before the judge (see Opinion 97-127). In Opinion 11-152(A), the Committee clarified that disqualification is required, subject to remittal, while the secretary is performing such work.4 The obligation continues until the work is completed and all fees are paid; after that point, there is no further obligation. Most recently, the Committee advised that only insulation and disclosure are mandated where the freelance typist is not a personal appointee of the judge, but is a court office assistant with general duties for the court as a whole (see Opinion 15-52). Because the present inquiry involves the judge’s personal appointee, Opinion 11-152(A) applies.
However, this inquiry presents a novel twist because the Unified Court System sometimes pays the secretary’s transcription fees. In such instances, the Committee believes the judge’s impartiality cannot reasonably be questioned (see 22 NYCRR 100.3[E]) when the attorneys involved in that case appear, as there is no financial relationship between them and the secretary. Thus, neither disclosure nor disqualification is required. Nor can the judge’s impartiality reasonably be questioned in a case merely because, while the case was in the lower court at an earlier stage, the judge’s secretary provided transcription services and was compensated therefor by the court system (id.).
Accordingly, where a judge’s personally appointed secretary provides transcription services on non-court time for cases pending in a lower court, the judge’s obligations depend on the source of the secretary’s compensation. If the Unified Court System pays for the transcriptions, the judge incurs no obligation to disclose or disqualify as a result of the secretary’s transcription services. However, if a party’s attorney pays for the transcriptions, the judge is disqualified, subject to remittal, from all matters involving the attorney until the work is completed and all fees are paid (see Opinion 11-152[A]). Of course, if the judge questions his/her impartiality in a particular case, the judge must not preside.
1 The secretary may contact the Non-judicial Ethics Helpline at 1-888-28-ETHIC for guidance on any Part 50 issues concerning the outside employment.
2 All such providers must comply with 22 NYCRR 108.3 and their transcripts are subject to random accuracy audits. However, they are not employed by the court system as electronic recording transcribers and they set their own rates.
3 The other court may handle arraignments or preliminary proceedings in felony matters, which may then be transferred and/or appealed to the judge’s court.
4 Remittal is not permitted if any party is appearing without counsel, if the judge is unwilling or unable to make full disclosure of the basis for disqualification, or if the judge doubts his/her ability to be impartial. Where permitted, remittal is a three-step process: 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 (see e.g. Opinion 15-151 n 1; 22 NYCRR 100.3[F]).