January 28, 2021
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).
Please Note: Points (2) and (3) of the Digest have been partially overruled by Opinion 21-41, which states: “On further consideration, we believe that, at least where the city itself is a named litigation adversary of the judge or the judge’s second-degree relative, it is inappropriate to limit the judge’s disqualification and disclosure obligations as we did in Opinion 21-23.” Please see Opinion 21-41 for more details.
Digest: (1) During the pendency of a proceeding brought by the judge on behalf of the judge’s minor child, the judge is disqualified (subject to remittal) from matters involving the adverse party or parties, and their counsel. Once the proceeding terminates, disclosure is required in lieu of outright disqualification for a period of two years for those same parties and attorneys.
(2) Where the adverse parties are a municipality and the municipality’s education agency, the judge’s disqualification and disclosure obligations are limited to those specific named entities, and do not apply to other municipal agencies or departments.
(3) Where those adverse parties are represented by governmental attorneys, the judge’s disqualification and disclosure obligations are limited to those specific government attorneys involved in the litigation, and do not apply to their other colleagues or subordinates.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 20-63; 18-139; 16-88; 14-51; 14-11.
A judge is currently engaged, on behalf of the judge’s minor child, in an administrative appeal of an administrative action against a municipal education agency. The captioned defendant is the municipal education agency and is represented by an in-house agency counsel. Should the judge’s application be denied, the judge expects to file an action in federal court, naming both the municipality and the education agency as parties. At that point, corporation counsel would likely represent the municipality and the education agency. As the judge presides primarily in criminal matters, the education agency and its in-house counsel do not ordinarily appear before the judge. Instead, the district attorney most often appears, and sometimes corporation counsel. The judge asks if it is permissible to preside in matters involving the corporation counsel and the district attorney, in light of the ongoing administrative proceeding and the anticipated federal action.
A judge must 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]). Thus, a judge must disqualify him/herself when his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), including in specific circumstances as required by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14). Unless otherwise provided, disqualification is subject to remittal (see 22 NYCRR 100.3[F]).
As summarized in Opinion 20-63, the “general rule when a judge or a relative within the second degree of relationship (sibling or closer) by blood or marriage is a party litigant” in their individual capacity is as follows (id. [footnotes omitted]):
• The judge’s obligation during the litigation is to disqualify him/herself from matters when the judge knows that a party or attorney appearing before him/her is currently the judge’s (or the relative’s) party-opponent or opposing counsel. The disqualification is subject to remittal as permitted by the Rules and our prior opinions.
• Thereafter, once the litigation is concluded, for two years, the judge must at least disclose the prior litigation when the judge knows that a party or attorney appearing before him/her was the judge’s (or the relative’s) party-opponent or opposing counsel within the past two years. Because this disclosure is mandated in lieu of outright disqualification, the judge must disqualify him/herself if any party is appearing without counsel in the matter before him/her.
• After this two-year period, the judge ordinarily has no further obligation, provided he/she can be fair and impartial, and thus need not disclose or recuse.
Where the opposing counsel is a government law office, such as the corporation counsel, district attorney, or attorney general, the judge’s obligations both during and after the litigation ordinarily extend only to the specific attorneys personally involved in the litigation, as opposed to the entire law office (see e.g. Opinions 16-88; 14-51; 14-11). Thus, for example, a judge who has sued the Public Defender “in his/her individual and official capacities” is disqualified, subject to remittal, in matters where the Public Defender personally appears, but may preside in matters where the Assistant Public Defenders appear, provided the judge believes he/she can be fair and impartial (Opinion 14-11). A judge is likewise disqualified, subject to remittal, for all attorneys who are personally involved in prosecuting his/her second-degree relative, but may preside over matters involving other prosecutors from the same office, including subordinates (see e.g. Opinion 14-51 [judge’s second-degree relative was prosecuted by a Supervising ADA and defended by the Public Defender]).
During and After the Administrative Proceeding
In the current administrative proceeding, the judge’s litigation opponent is the municipal educational agency, represented by specific attorney(s) from the agency’s in-house counsel. As the municipal educational agency is extremely unlikely to appear in the judge’s criminal part, we focus on the attorneys.
During the proceeding, the judge is disqualified if and when the specific in-house government attorney who is representing the municipal education agency in the application involving the judge’s minor child appears before the judge (see Opinion 16-88). The judge is not disqualified when the District Attorney and/or Corporation Counsel or their assistants appear before the Judge (see Opinion 16-88). This disqualification is subject to remittal (see id.).
Once the administrative proceedings conclude, should the specific attorney(s) who represented the education agency appear, disclosure is required for two years thereafter (see Opinions 20-63; 16-88; 14-51). During this two-year period, because disclosure is mandated in lieu of disqualification, if a party appears without representation or if the judge is unwilling or unable to make full disclosure, the judge must simply disqualify him/herself (see id.)
During and After the Federal Action
Should the judge commence an action in Federal Court on behalf of the judge’s minor child, the same principles apply.
Thus, during the pendency of the child’s proceedings, the judge must disqualify from matters involving the adverse party or parties, and their counsel (see Opinions 20-63; 18-139):
• With respect to the adverse parties, if the judge sues both the municipality and its education agency in federal court, the judge will be disqualified (subject to remittal) in matters when either the municipality or the education agency is a party, during the pendency of the federal proceeding. While we again assume the education agency and the municipality are unlikely to appear in the judge’s criminal part, we nonetheless note that disqualification would be required if there are criminal matters brought in the name of the municipality (as opposed to the state)
• If, as the judge anticipates, those adverse parties are represented by attorneys from the Corporation Counsel’s office in federal court, the judge will be disqualified (subject to remittal) in matters where those specific attorneys appear, during the pendency of the federal proceeding.
Once the federal proceeding terminates, disclosure is required for a period of two years thereafter for those same parties and attorneys (see Opinion 20-63). Again, if a defendant is appearing without counsel, the judge must simply disqualify.
The District Attorney represents the People of the State of New York and, on these facts, is expected to have absolutely no interest or involvement in the child’s educational administrative proceedings or the prospective federal lawsuit. Therefore, in matters where the judge is not otherwise required to disclose or disqualify as noted above, there are no new or additional disqualification and/or disclosure requirements arising out of the child’s proceedings when the District Attorney’s office appears before the judge.