April 27, 2015
PERSONAL AND CONFIDENTIAL
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).
This responds to your inquiry (15-88) asking whether you must disqualify yourself when an attorney, who is representing a defendant in a small claims matter before you, is also representing your child in an unrelated, contested matrimonial action.
The Committee has previously advised that a judge must disqualify him/herself in a proceeding where an attorney who appears before the judge is currently representing the judge's child in another matter. Disqualification while the attorney is representing the judge's child is subject to remittal, unless one of the parties is self-represented. In the latter case, the judge may not preside.
For a period of two years after the representation ends, in any case where the attorney appears and all parties are represented, the judge must disclose that the representation occurred. After such disclosure, if a party objects to the judge's continued participation in the matter, the judge must exercise discretion and determine whether recusal is warranted. However, if a party appears without representation during this two year period the judge must disqualify him/herself. Once the two year post-representation period ends, the obligation to disclose ceases.
Accordingly, even if your disqualification will likely require that the matter be transferred to another court, you may not preside over the matter under the circumstances presented, unless the disqualification is remitted. In the event there are post-judgement proceedings, you may write the Committee for further guidance.
Enclosed, for your convenience, are Opinions 08-165 and 14-51 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)