Opinion 17-97

June 15, 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:         Where a housing court judge’s first-degree relative is president of a real estate management company, the judge is disqualified, subject to remittal, in all cases involving the company’s outside counsel.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 17-03; 16-130; 14-147; 07-27; 03-83.

Opinion:

A housing court judge’s first-degree relative¹ is the president of a real estate management company with properties in multiple locations, although none is within the jurisdiction of the judge’s court. The company’s outside counsel is a law firm that regularly appears in the judge’s court on behalf of other clients in landlord/tenant or other real estate matters unrelated to the judge’s relative’s employer. The judge’s relative has little, if any, direct contact with outside counsel, but instead delegates these functions to others. That is, other individuals within the company handle the selection and retention of outside counsel as well as day-to-day interactions with counsel. The judge asks if he/she may preside in cases where the law firm appears on behalf of other clients.

          A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Thus, a judge must disqualify him/herself whenever the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

A few prior opinions provide some guidance here. In Opinions 03-83 and 16-130, a judge asked if he/she could preside in matters where the same law firm that represents the judge’s spouse’s employer appears on behalf of other clients. We concluded the judge’s impartiality might reasonably be questioned in such matters if the judge’s spouse, a salaried company employee, is responsible for initial selection of the company’s outside litigation counsel and works with them on the company’s litigations (see Opinion 03-83) or if the judge’s spouse, as director of government relations, helps select the outside law firm and thereafter works directly with the firm’s lobbyists (see Opinion 16-130). In those circumstances, the judge is disqualified, subject to remittal, when the employer’s outside counsel appears on other matters unrelated to the judge’s spouse or his/her employer (see Opinions 16-130; 03-83).

Here, although the judge’s first-degree relative has delegated selection of outside counsel to others, he/she remains ultimately responsible for the choice in his/her capacity as president of the company. Presumably, he/she has authority to accept or reject the attorneys selected by his/her delegate. Similarly, although the judge’s relative does not work directly with the law firm, the ultimate authority to approve the work performed by the firm rests with the judge’s relative, who may also be called upon to testify on behalf of company. Accordingly, the fact that the judge’s relative does not personally exercise the authority to select and supervise the attorneys, but delegates the authority to others, does not materially change the analysis from these prior opinions. As such, the relationship is one that might cause the judge’s impartiality to reasonably be questioned when the company’s outside counsel appear before the judge (see 22 NYCRR 100.3[E][1]; Opinions 16-130; 03-83).

Moreover, in Opinion 07-27, we advised that a judge is disqualified, subject to remittal, in all matters involving an attorney who leases office space from the judge’s parents’ corporation. In essence, we concluded that the judge’s impartiality could reasonably be questioned when there is an ongoing landlord/tenant relationship between an attorney and a corporation owned by first-degree relatives of the judge. Here, although the judge’s first-degree relative does not own the company, he/she is its highest executive officer. In the Committee’s view, this likewise suggests a strong identity of interest between the judge’s relative and the company.

Accordingly, we conclude the judge’s impartiality could “reasonably be questioned” in matters involving the law firm that represents the real estate management company headed by the judge’s first-degree relative (22 NYCRR 100.3[E][1]; cf. Opinions 16-130; 07-27; 03-83). The judge is therefore disqualified, subject to remittal, when the law firm appears before him/her.

As always, 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 17-03 fn 3; 22 NYCRR 100.3[F]).

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         ¹ When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (e.g. Opinion 14-147 n 1). Thus, first-degree relatives of the judge include not only the parents and children of the judge and his/her spouse, but also the spouses of such individuals.