January 27, 2022
Digest: (1) Where a judge was previously a social services provider to criminal defendant clients:
(a) The judge must disqualify if one of those clients appears before the judge on the same case.
(b) The judge may preside if the case currently before the judge is unrelated to the underlying case where the judge previously worked as a social service provider to the same client and the judge concludes that the judge can be fair and impartial.
(c) But if the judge becomes aware of a material, relevant connection between the case currently before the judge and the underlying case where the judge previously worked as a social services provider to the same client, then the judge must disclose the connection. If the judge then concludes that the judge can be fair and impartial, the judge may preside.
(2) If a judge is disqualified in a matter, the disqualification applies to all stages of the case, including the issuance or staying of a bench warrant.
(3) A judge who previously served as an institutional criminal defense attorney or as a social services provider to numerous criminal defendants must adopt reasonable procedures to identify such clients. However, the judge need not investigate or take any other action unless the judge actually recognizes a particular individual as a former client, or unless such former client relationship is otherwise brought to the judge’s attention.
Rules: Judiciary Law § 14; 22 NYCRR 100, Preamble; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i)-(ii); 100.3(E)(1)(b)(i), (iii); 100.3(E)(1)(e); 100.3(F); Opinions 20-73; 18-118; 18-79; 18-02; 17-50; 16-36; 15-211; 14-166; 13-54; People v Moreno, 70 NY2d 403 (1987).
Before assuming the bench, the inquiring full-time judge worked with many criminal defendants in two independent capacities. At one point, the inquirer was a social service provider for defendant clients. In that capacity, the inquirer designed and operated alternatives to pretrial detention and incarceration. The services included initial assessment and approval of clients into the program, overseeing all service, appearing in court as a mandated reporter to the court and as an advocate (but not as an attorney) for clients, some of whom could be in the program for up to five years. At other times, the inquirer worked as an institutional criminal defense attorney for defendant clients. The judge now seeks guidance on three questions: 1) Since the judge was previously a social services provider to criminal defendants and was privy to defendants’ personal information, must the judge disqualify in matters involving these former social services clients? 2) May the judge issue or stay a bench warrant for these former clients? 3) Because the judge previously represented thousands of criminal defendants, as either a social services provider or as a defense attorney, and is unlikely to remember them all, what is the judge required to do in order to identify them?
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]). A judge must also disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E]), or in other circumstances as required by rule or law (see e.g. Judiciary Law § 14). For example, a judge must never preside in a proceeding if the judge knows that he/she “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][b][i]; Judiciary Law § 14); “has a personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][a][i]; 100.3[F]), or “has been a material witness concerning [the proceeding]” (22 NYCRR 100.3[E][b][iii]; 100.3[F]). A judge is also disqualified if the judge “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][a][ii]), or “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][e]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 ; Opinion 15-211). “The rules governing judicial conduct are rules of reason” (22 NYCRR 100, Preamble).
1. General Principles – Former Social Services Provider Clients
There are many rules and precedents focused on judicial disqualification and are often very fact-specific in their application. The inquiring judge asks particularly about the judge’s prior work as a social services provider to criminal defendant clients and how that work might impact the judge’s ability to preside in cases involving those same clients.
We turn to Opinion 18-02 for guidance on an analogous situation. The judge in Opinion 18-02 had been a non-supervisory probation officer doing work that is almost identical to this judge’s prior work as a social services provider. Both positions involved criminal defendant clients, gathering voluminous personal information, designing and operating programs for alternatives to pretrial detention and incarceration, evaluating and assessing defendants, appearing in court as a mandated reporter to the court and advocating (but not as attorneys) for defendants, and sometimes working with the same defendant for many years.
In Opinion 18-02, we set forth several basic disqualification rules for judges who had a prior non-attorney/client relationship with a criminal defendant client and who then later had a case in the judge’s court (see id.). First, a judge who is aware that the judge previously and personally served as a probation officer on a case is permanently disqualified from presiding later as a judge on that same case, because the judge’s impartiality “might reasonably be questioned” (see id. [citations omitted]). Furthermore, the judge might have acquired personal knowledge of disputed evidentiary facts at a current or previous stage of the proceeding (see id. [citations omitted]).
Second, we said that if a former probation client’s case comes before the judge and is unrelated to the case on which the judge worked as a probation officer for the client, the judge may preside, as long as the judge concludes they can be fair and impartial (see id. [citations omitted]).
Third, if a former probation client’s case comes before the judge and that case is different from the case on which the judge worked previously as a probation officer for the client, but nonetheless has “material, relevant connections” to the underlying criminal case on which the judge worked as a probation officer, then the judge must disclose the connection. After disclosure, the judge may preside if the judge concludes that the judge “can be fair and impartial, even if a party objects” (Opinion 18-02).
Because the inquiring judge’s prior relationship with defendant clients as a social services provider appears similar to the working relationship between a probation officer and their defendant clients, we conclude the same disqualification principles apply to the inquiring judge’s former social services clients.
2. Bench Warrants
The judge also asks if the judge is permitted to issue or stay a bench warrant if the judge is disqualified from a case. We have advised that, where a judge is disqualified, the judge must disqualify at the outset of the case (or at least as soon as the judge becomes aware of the basis for disqualification), and that a judge may not preside at an arraignment or sign a search warrant application if the judge is or will be disqualified from the case (see Opinion 14-166).
We see no reason to treat a bench warrant differently from a search warrant here. Thus, the inquiring judge should determine if disqualification is appropriate prior to taking any action, and if disqualified, should not act on a bench warrant. Conversely, where the judge is not disqualified, the judge may generally preside in all aspects of a matter.
3. Identification of Former Clients
As described in the inquiry, this judge “represented thousands of people” at institutional defense organizations, and is thus unlikely to remember each former client’s name and face. While the same general principles apply to identification of clients the judge previously represented as an attorney and those the judge represented as a social services provider, we address those scenarios separately below because there are certain differences in practical application.
a) Former attorney/client relationship.
Where the potential conflict is due solely to a former attorney/client relationship on an unrelated matter, the obligation ordinarily lasts for a two-year period after the attorney/client relationship completely terminates (see e.g. Opinions 20-73; 18-79). During that two-year period, a judge must adopt “reasonable procedures to avoid presiding over matters” involving former clients (see Opinions 18-118; 13-54; 17-50).
Therefore, the judge need not investigate or take any other action unless the judge “actually recognizes” that a particular individual appearing before the judge is someone the judge represented as an attorney within the past two years, or unless such recent former client relationship is “otherwise brought to the judge’s attention” (Opinion 18-118, quoting Opinion 16-36).
b) Former social services client.
As outlined in the response to question 1 above, there is no specific timeframe during which the judge is disqualified for the judge’s former social services clients; the judge’s obligations depend on whether it is the same case, a related case, or an unrelated case (see Opinion 18-02).
Accordingly, we conclude the judge need not investigate or take any other action unless the judge “actually recognizes” that a particular individual is someone the judge represented as a social services provider, or unless such former client relationship is “otherwise brought to the judge’s attention” (cf. Opinions 18-118; 16-36).