March 14, 2019
Digest: A town justice who serves as a court attorney to a multi-bench county court judge:
(1) must be insulated in the superior court from (a) all matters originating in the town court in which he/she presides and (b) every matter that touches on an incident over which the court attorney presided as a town justice, even if it was a completely separate case;
(2) may preside in a town court criminal case involving a defendant who is also appearing before the superior court judge, even if the town court case may be resolved by a guilty plea in the superior court, provided the justice is insulated from the superior court criminal case; and
(3) may not preside in a town court case involving a party who previously appeared before him/her as a court attorney in superior court for a pretrial conference of a family court matter.
Rules: 22 NYCRR 100.2; 100.2(A)-(B); 100.3(A); 100.3(E)(1); 100.6(B)(4); Opinions 19-12; 18-23/18-56; 17-171; 16-162; 16-43; 14-137; 07-04; 2019 Ann Rep of NY Commn on Jud Conduct 22-24.
The inquiring town justice serves as a full-time court attorney to a multi-bench county court judge in the same county. The inquirer asks about his/her obligations when the same parties appear in the superior court and in the justice court. With respect to criminal cases, the justice is “generally insulated from routine criminal cases” as a court attorney, unless they involve “a novel legal issue, a post-conviction motion, or cases that go to trial;” the superior court judge will also “occasionally” discuss “a hearing or sentencing.” But with respect to family court matters, as a court attorney, the inquiring justice conducts all pretrial conferences for his/her judge.
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]). Although a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a part-time judge may nonetheless maintain public employment that is not incompatible with judicial office and does not interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B]). A judge must not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]); and must disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E]).
We have said a county court judge’s full-time court attorney or law clerk may concurrently serve as a part-time judge within the same county (see e.g. Opinion 18-23/18-56 [citing prior opinions]). The superior court judge may hear matters originating in or appealed from the justice court in which the law clerk presides, provided he/she insulates the law clerk from all such matters and the insulation is disclosed on the record to all parties and their counsel (see Opinion 16-162). The superior court judge must also insulate the court attorney from “every matter that touches on an incident over which the court attorney presided as a town court justice, even if was a completely separate case” (Opinion 18-23/18-56).
Clearly, the part-time justice must be insulated in the superior court “from all matters originating in the town court” (Opinion 19-12; accord e.g. Opinion 18-23/18-56).1 The insulation is not subject to waiver or remittal (see Opinion 19-12). We observed that the town justice “may accept the return of criminal matters from his/her superior court judge in matters from which he/she was properly insulated” (Opinion 18-23/18-56). But “[c]onversely, if the town justice was not insulated from a superior court matter and thus participated substantially in it as a law clerk, he/she must not receive the return of such matter as a town justice” (id.).
Criminal Court Cases
The inquiring justice first asks if he/she may preside in a misdemeanor case in town court involving a defendant who “currently has an unrelated felony pending in front of” the superior court judge, where the justice has had no contact whatsoever with the defendant’s superior court proceeding as a court attorney and, thus, has “no knowledge about” the superior court case. The justice notes that the misdemeanor charge in the town court could potentially be disposed of by a plea in the superior court. We conclude the town justice may preside in a misdemeanor case involving a defendant whose felony case is pending before the superior court judge, provided the town justice remains insulated from the superior court case. The result does not change merely because the justice court misdemeanor charge may eventually be disposed of by a guilty plea in county court.
More generally, the justice asks how to proceed on learning that a defendant in town court is also appearing in the superior court, including any disclosure obligations in town court. The justice proposes to inform the superior court judge of the town court case to ensure that he/she will continue to be appropriately insulated as a court attorney from the defendant’s superior court case but will recuse from the defendant’s town court case if he/she is already familiar with the defendant’s superior court case.
We concur with this approach. On learning that a defendant in town court is also a defendant in a county court criminal case, the town justice should determine whether or not he/she has had any involvement in the defendant’s superior court case. Assuming the town justice has acquired no information concerning the defendant in his/her capacity as a court attorney, the justice may preside in the defendant’s justice court case. Disclosure is not required, although the judge may do so in his/her discretion. However, the town justice should advise the superior court judge of the defendant’s justice court case, ask to be insulated from the superior court proceeding, and honor the insulation while the proceedings are pending. Thereafter, if either side asks the justice to disqualify him/herself in the town court matter, the justice need only advise the parties that he/she is completely insulated from the defendant’s superior court case and will maintain that insulation throughout both proceedings. The justice may continue to preside, assuming he/she can be fair and impartial.
Conversely, if the justice knows he/she already obtained information concerning this defendant from his/her work as a court attorney in the superior court, then he/she must not preside in the local criminal court matter.
Family Court Cases
As a court attorney, the inquirer currently conducts all pretrial conferences in family court matters for his/her judge. The justice is aware of Opinion 18-23/18-56, which says a court attorney who also serves as a town justice must be insulated from every matter that “touches on” an incident over which he/she previously presided as a justice. Indeed, we said insulation is required where the superior court case is “distinct but related … involving some of the same parties, incidents or legal issues, even if there is only a minor or tangential relationship” (id.).
Here, the justice first asks about the effect of his/her court attorney responsibilities on his/her ability to preside in the town court. Specifically, where the justice has already conducted a pretrial conference in a family court case, may he/she subsequently handle a town court case involving one of those same parties, where the town court case has little (if any) connection to the family court case? For example, the justice asks if he/she may handle “a speeding ticket (with no child endangerment issue), petit larceny, or an eviction” involving a party that is also in a family court case before his/her judge. The justice notes that petit larceny cases are common in the town court.
To the extent the inquiring justice routinely conducts all pretrial conferences in family court, it clearly will not be possible to insulate him/her from family court matters in the superior court. Approaching the issue from the other direction (i.e. the effect of a prior adjudication on a judge’s extrajudicial employment as a court attorney), we said “it would not be appropriate for the full-time court attorney to work on cases with the inquiring judge in Family Court if he/she previously adjudicated any issues involving the parties while presiding in Town Court, even within the context of a separate criminal misdemeanor case” (Opinion 18-23/18-56 [emphasis in original]). To underscore the broad scope of the obligation to protect the integrity of the process, we explained (id.):
Litigants and the general public should be assured the superior court judge reaches his/her own, independent conclusions about the case, without the assistance of a justice (i.e. the full-time court attorney) who presided over distinct but related cases in Town Court involving some of the same parties, incidents or legal issues, even if there is only a minor or tangential relationship.
Of course, a part-time or full-time judge who acquires knowledge of a party, attorney, or witness in the course of his/her judicial duties, rather than from an extrajudicial source, ordinarily may preside in additional cases involving the same individual, provided he/she can be fair and impartial (see e.g. Opinion 16-43 [discussing prior opinions]). However, we decline to apply the same standard here when a part-time town justice has gained knowledge of a party in his/her nonjudicial capacity as court attorney to a superior court judge. In the course of his/her nonjudicial employment, a court attorney is subject to the direction and control of his/her judge. Moreover, the relationship between them is one of “particular trust and confidence,” akin to that of “the kind of professional interchange that might be found between long-time colleagues in a law firm” (Opinion 07-04). Thus, the court attorney’s evaluation of the parties’ factual assertions, legal arguments and credibility when acting in a nonjudicial capacity is not likely to be seen as his/her own independent exercise of judicial judgment, particularly as the superior court judge’s judicial functions are, in fact, nondelegable (see e.g. Opinion 14-137; 2019 Ann Rep of NY Commn on Jud Conduct 22-24). Rather, at the very least, his/her view of the case will be seen as heavily influenced by the superior court judge’s views.
Here, the inquiring judge’s ethical obligations largely depend on which function he/she exercises first. If the justice has already conducted a pretrial conference in a family court matter, he/she necessarily has not been insulated from the case and, thus, must subsequently disqualify him/herself in any justice court case involving a party to the family court proceeding.
However, if the justice has already handled a town court case involving a particular defendant, he/she must be insulated as a court attorney from any subsequent family court matter involving that defendant. Insulation is required regardless of the nature of the criminal or traffic charge. That is, if the court attorney, prior to conducting a pretrial conference in the superior court, becomes aware that a party to the family court proceeding has a matter pending in the local court, then the court attorney must be completely insulated from the family court proceeding and, if so insulated, may preside in the town court case.
Finally, the justice asks whether there is a distinction between “pending cases and decided cases.” Ethically, there should be no distinction. If the local justice pre-tries a family court matter, then he/she cannot preside in a subsequent local criminal court matter involving the same party and recusal would be appropriate regardless of when the pretrial matter occurred and whether the family court matter was pending or already decided.
1 This necessarily includes, but is not limited to, “all matters that come before [him/her] at the local level” (Opinion 17-171) as well as “matters in which he/she or another judge of that court exercised preliminary jurisdiction” (Opinion 16-162 fn 2).