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 judge is disqualified, subject to remittal, when an attorney who represents his/her first-degree relative in a tax certiorari matter appears before the judge. After the representation has concluded, the judge must disclose the relationship to all parties and their counsel for a two-year period. After the two-year period has elapsed, neither disclosure nor disqualification is required.
Rules: 22 NYCRR 100.0(c); 100.2; 100.2(A); 100.2(c); 100.3(E)(1); 100.3(F); Opinions 17-76; 17-67; 14-60; 13-132; 12-178; 12-111; 09-138.
The inquiring judge’s first-degree relative1 retained counsel for a tax certiorari matter involving real estate owned by his/her relative as trustee of a revocable trust. The inquiring judge did not participate in hiring counsel and has no current ownership interest in the trust, but only a survivorship interest in the trust asset. The judge asks about his/her obligations when this attorney appears before him/her.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity an impartiality (see 22NYCRR 100.2[A]) and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge must also disqualify him/herself in a proceeding in which the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3 [E]).
In general, a judge is disqualified, subject to remittal, when an attorney representing the judge’s first or second-degree relative appears before the judge (see Opinions 14-60; 13-132). When his/her relative hires the attorney, the judge’s obligations are ordinarily limited to the specific attorneys who are or were personally involved, either in a direct or supervisory capacity, in representing the judge’s relative (see id.). Once the representation has concluded, disclosure is required, in lieu of disqualification, for a two-year period thereafter (see id.).
In certain circumstances, we have concluded that a judge should proceed with his/her disqualification obligations as if the judge had retained counsel him/herself, specifically when the judge’s relative retained counsel for a matter in which the judge had a personal interest (see Opinions 17-76; 17-67). In such instances, a judge must continue to disqualify him/herself for the two-year period after the representation completely terminates (see Opinion 17-67).
Here, we believe the judge’s survivorship interest in this trust asset at a possible future date cannot reasonably be perceived to encompass the judge’s current personal interests. Therefore, because the judge did not participate in hiring counsel and does not have an interest in this litigation, the judge need not proceed as if he/she had personally retained counsel.
Accordingly, the judge is disqualified, subject to remittal, when any attorney personally involved in representing the judge’s first-degree relative appears before the judge while the representation is ongoing (see Opinion 13-132).2 Remittal is not permitted if any party is proceeding without legal representation; or the judge is unwilling or unable to make full disclosure of the basis for the disqualification; or the judge doubts his/her ability to be impartial (see id.). Once the representation is fully concluded and all outstanding fees have been paid, the judge is no longer disqualified outright from hearing matters in which his/her relative’s former counsel appears, provided the judge can be fair and impartial, but the judge must fully disclose the prior presentation for a two-year period thereafter (see Opinion 13-132; 12-111). During this period, the judge must disqualify him/herself if any party appears without representation or if the judge does not wish to or cannot fully disclose the former representation, but otherwise has the discretion to preside even if a party objects after disclosure (see id.).
After the two-year period has elapsed, the judge has no further obligation, but may disclose in his/her sole discretion if he/she wishes to do so (see id.).
1A first-degree relative by blood or marriage includes a parent, step-parent, child, or step-child (see generally 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system”]; see also Opinions 13-132; 12-178).
2 Remittal is a three-part process (see 22 NYCRR 100.3[F]). First, the judge must fully disclose the basis for the disqualification on the record; second, without the judge’s participation, all non-defaulting parties and their attorneys must agree that the judge should not be disqualified; and, third, the judge must independently conclude that he/she can be impartial and is willing to participate in the case (see Opinions 17-76 fn 2; 14-60 fn 3; 09-138). Once all three conditions are satisfied, the disclosure of the judge’s disqualification, remittal and acceptance must be reflected in the case record (see id.).