September 7, 2017
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 is disqualified, subject to remittal, when a law student who appears before him/her pursuant to a student practice order is directly supervised by an attorney with whom the judge maintains a close personal relationship.
Rules: Judiciary Law §§ 14; 478(3); 484(2); 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); 805.5(b); Opinions 17-13; 16-130; 16-114; 15-45; 14-90; 13-59; 12-85(B); 11-125.
A judge maintains friendships with two professors who teach in a law school clinic that assigns students to work with a legal services organization on cases that may come before the judge. One professor has a “close personal relationship” with the judge, warranting disqualification (Opinion 11-125). The judge considers the other more of a professional mentor, but they also have a “close social relationship” (see id. [requiring disclosure]). In cases involving the clinic, the legal services organization is the attorney of record, but the law students “appear on the record” pursuant to a student practice order, and “typically do most of the required work out of court.” The clinic itself “operates like a law firm, with open lines of communication between both professors, who become knowledgeable about all cases handled by the [c]linic..., offering ideas and assistance to each other and their students as necessary.” Thus, the professors are directly and personally involved in each representation, albeit primarily behind the scenes. The judge asks about his/her obligations if a law student is involved in a case before the judge per the clinic’s student practice order.
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]). In particular, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
Clearly, the judge has no direct relationship with the law students, but only with the law professors who operate the clinic. As we have repeatedly stated, where a judge has a social relationship with an attorney that requires disqualification or disclosure when that attorney appears, “this obligation does not automatically extend” to the attorney’s law office colleagues, including subordinates and direct reports (Opinion 16-114 [emphasis added]; accord 17-13; 15-45; 14-90; 13-59, 12-85[B]).
Here, however, the judge knows his/her friends have direct, hands-on involvement in all cases handled by their subordinates. After all, these subordinates are not licensed attorneys, but law students who are only permitted to appear under supervision pursuant to a student practice order (see e.g. Judiciary Law §§ 478; 484; 22 NYCRR 805.5[b]). Thus, the professors are “knowledgeable about all cases handled by the [c]linic” and offer “ideas and assistance” as needed. Although not expressed in the inquiry, we would not be surprised if the professors found this high level of involvement essential to ensure that clients’ legal rights are protected, fulfill their own ethical responsibilities as attorneys and their pedagogical goals as professors, and/or comply with the terms of the applicable student practice order.
As described, one friend’s personal participation in a case before the judge warrants disqualification (see Opinion 11-125 [close personal relationship]), while the other friend’s involvement requires at least disclosure (see id. [close social relationship]). Accordingly, the judge is disqualified, subject to remittal, when a student supervised by the judge’s law professor friends appears before the judge as part of the law school clinic (see Opinions 11-125; 15-45).
As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. 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 disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see Opinion 16-130; 22 NYCRR 100.3[F]).