March 29, 2018
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 new Surrogate’s Court judge who sold his/her cabinet of wills to an attorney for a one-time payment: (1) may not preside in any cases involving the purchased wills and (2) is disqualified, subject to remittal, in all other cases involving the attorney for two years following the payment for the files. During the two-year disqualification period, the judge may not preside in any uncontested cases involving the attorney who purchased the wills, as remittal would not be possible.
Rules: SPCA § 1004; 1408; 22 NYCRR 100.2; 100.2(A); 100.4(D)(1)(c); 100.3(E)(1); 100.3(E)(1)(b)(i); 100.3(F); 22 NYCRR 1200, Rules 1.2(c); 1.7; Opinions 17-169/17-170; 16-130; 14-13; 11-43; 07-128; 06-62; 05-130(B); 98-14; 97-44; 94-110; People v Moreno, 70 NY2d 403 (1987).
A new surrogate asks if he/she may preside over cases involving an attorney who purchased the judge’s file cabinet of wills and other advanced directives for a relatively modest price which has already been paid.1 There is no continuing monetary obligation or other financial relationship between them.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2 [A]). Thus, a judge must disqualify him/herself from any proceeding in which his/her “impartiality might reasonably be questioned” (22 NYCRR 100.3[E]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
Cases Involving the Purchased Wills
Preliminarily, we note that a judge is permanently disqualified, without the possibility of remittal, in any matter where “the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][b][i]; see also 100.3[F]; Opinion 17-169/17-170). Thus, the judge may not preside in any cases involving the purchased wills or advanced directives.
Although a judge must not engage in a continuing business relationship with a lawyer likely to come before the court (see 22 NYCRR 100.4[D][c]), a judge may nonetheless sell his/her law practice to a lawyer who practices in the judge’s court (see Opinions 06-62; 05-130[B]; 97-44). After the sale takes place, the judge must disqualify him/herself from all matters involving the purchasing attorney for a two-year period (see id.; but see Opinion 14-13 [applying a different rule where the judge sold only his/her law office telephone number]). However, disqualification is subject to remittal following full disclosure on the record (see Opinions 06-62; 05-130[B]; 97-44). The two-year period runs from the date of the final payment arising out of the sale (see Opinions 06-62; 05-130[B]). Since the purchasing attorney here paid a one-time fee, the disqualification ends two years from the date of the one and only payment.
Uncontested Matters with Customized Waiver and Consent
The judge also asks whether he/she may preside in uncontested will probate cases in which the purchasing attorney appears on behalf of the petitioner, if the attorney includes specific language in the waiver and consent or in a separate writing that would “acknowledge the judge’s duty to disqualify [him/herself] subject to remittal” and if “all other elements of the remittal were completed and all parties agreed.” The judge explains that many parties “waive and consent to the proceeding without appearing and without having an attorney.” The judge envisions that those who execute the customized waiver and consent could (a) consult with an attorney, (b) accept limited representation by petitioner’s counsel “for the restricted purpose of remittal,” or (c) proceed without counsel. All other elements of the remittal process would proceed along usual lines.
As described in Opinion 16-130 (citations omitted), where permitted, remittal is a three-step process:
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.
The proposed procedure clearly does not satisfy these requirements. For example, it would rely on disclosure by the purchasing attorney of the judge’s conflict and would attempt to secure consent to remittal of the judge’s disqualification from unrepresented persons in advance of the proceeding.2
We have advised that a judge who must disqualify him/herself because of a relationship with an attorney appearing in the judge’s court must do so even in uncontested matters (see Opinions 07-128; 98-14; but see Opinion 94-110 [co-judge may preside in judicial colleague’s uncontested adoption proceeding]).
As we advised in Opinion 11-43:
The fact that the necessary parties to a probate or estate administration proceeding have waived and consented to the relief requested does not warrant a different result. In the Committee’s view, the Surrogate’s role requires the judge to exercise discretion in making judicial determinations that are more than purely ministerial in nature. Pursuant to §1408 of the Surrogate’s Court Procedure Act (SCPA), “before admitting a will to probate, the court must inquire particularly into all the facts and must be satisfied with the genuineness of the will and the validity of its execution.” Similarly, pursuant to §1004 of the SCPA, “upon the return of process in a proceeding for letters of administration upon the estate of a person alleged to be deceased the court must inquire into the facts and take proof thereof and if it appears that he is dead the court may make a decree so determining and directing the issuance of letters of administration upon his estate as prayed for in the petition or to such other person who may appear entitled thereto.” While the resolution of these initial issues in a proceeding may often be, or appear to be, routine or mundane, they are fundamental and highly significant.
Here, too, the inquiring judge may not preside over uncontested cases submitted by the purchasing attorney during the two-year disqualification period, because remittal is not possible (see id.).
1 The payment was a few thousand dollars, which the judge characterizes as “insignificant.”
2 We do not here comment on whether the required full disclosure of the basis for the judge’s disqualification can be made in writing by a person other than the judge and later incorporated into the record of the proceeding (see Opinion 16-130 [“the judge must fully disclose the basis for disqualification on the record”]; 22 NYCRR 100.3[F] [judge who wishes to offer remittal of disqualification must “disclose on the record the basis of the judge’s disqualification”]). Nor do we comment on the propriety of the purchasing attorney’s proposed limited concurrent representation of the petitioner and a party that executes a waiver and consent (see Rules of Professional Conduct, 22 NYCRR 1200, Rules 1.2[c]; 1.7).