September 14, 1999
Digest:
A Family Court judge must insulate the judge's Principal Court Attorney
from any involvement in any proceeding in which the Principal Court Attorney
previously had been involved as assigned counsel or law guardian. Disclosure
must be made and upon application for recusal, discretion exercised in
light of the facts presented.
Rule:
22 NYCRR 100.3(E)(1);
Opinion 99-48.
Opinion:
A Family Court judge is appointing as the judge's Principal Court Attorney someone whom the judge had previously appointed on numerous occasions as assigned counsel or law guardian. The judge seeks advice as to how the proceed in those matters which will continue to come before the judge in which the Principal Court Attorney had previously served as assigned counsel or law guardian. As stated by the judge:
The Committee believes that this is the proper way to proceed. The Principal Court Attorney must be completely insulated from such cases and the judge must disclose to the parties and the attorneys the prior involvement of the Principal Court Attorney. In the event of an application for recusal, the judge should exercise his or her discretion in determining whether to recuse if a claim is made that in that particular proceeding "the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1). To the extent this differs from Opinion 99-48, where the Committee stated that the judge should disqualify himself or herself if requested to do so, notwithstanding the law clerk's insulation, the Committee regards the position expressed herein as the more desirable result under the facts presented.I am seeking the advice of the Committee as to the proper manner to approach these cases. I am able to insulate the matters from my Principal Court Attorney so that she has no involvement with the cases and additionally I would expect to disclose her previous involvement to counsel on the matters brought before me. Any requests for recusal can then be addressed on a case by case basis.