Opinion 08-165

September 11, 2008

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:         (1) A judge must disqualify him/herself in a proceeding where the Public Defender who currently represents the judge’s child in a criminal matter and any member of the Public Defender’s staff who is involved in representing the judge’s child appears in the judge’s court. Such disqualification is subject to remittal unless a party is self-represented. (2) A judge need not disqualify him/herself in a proceeding where either the District Attorney who initially prosecuted the judge’s child or the judge who, after arraigning the judge’s child, exercised recusal appears in the judge’s court, as their involvement in the judge’s child’s case was brief and preliminary in nature.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 07-128; 02-124; 02-56; 04-100; 98-14 (Vol. XVI); 92-60 (Vol. IX).

Opinion:

         A full-time judge’s child, who is charged with a criminal offense allegedly committed in the same county where the judge presides, was arraigned before a part-time judge who is permitted to practice law. The District Attorney appeared initially to prosecute the case, and the Public Defender appeared to represent the judge’s child. After the arraignment, the part-time judge exercised recusal. The District Attorney quickly was replaced as prosecutor by the District Attorney of a neighboring county. The Public Defender, however, continues to represent the judge’s child.

         The judge asks about his/her obligation to disclose and/or disqualify him/herself when any of the following attorneys appear in his/her court: (1) The District Attorney who initially appeared to prosecute the case, assistant district attorneys, the Public Defender, and assistant public defenders, who appear either as government attorneys or as private practitioners; (2) A partner or associate of the District Attorney who initially appeared to prosecute the case, of an assistant district attorney, of the Public Defender, or of an assistant public defender; (3) The part-time judge who presided over the arraignment, his/her law partners and associates, and his/her spouse.

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). In particular, a judge must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge, therefore, must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.2; 100.3[E][1]).

         In several previous opinions, the Committee has advised that a judge must disqualify him/herself in a proceeding where an attorney who appears before him/her is currently representing the judge’s child in another matter (see Opinions 07-128; 02-56; 92-60 [Vol. IX]). The judge in the present inquiry, therefore, also must disqualify him/herself in any proceeding where the Public Defender appears, either in his/her government capacity or as a private practitioner, while the Public Defender is representing the judge’s child. The judge also must disqualify him/herself in any proceeding where a member of the Public Defender’s staff who was or still is involved in representing the judge’s child appears in the judge’s court. In either case, such disqualification is subject to remittal (see Opinion 98-14 [Vol. XVI]). The inquiring judge, therefore, may disclose on the record the basis of his/her disqualification, and, if following such disclosure, the parties who have appeared and not defaulted, and their lawyers, without the judge’s participation, all agree that the judge should not be disqualified, and the judge believes that he/she will be impartial and is willing to participate, the judge may participate in the proceeding. The agreement must be incorporated in the record of the proceeding (see 22 NYCRR 100.3[F]). Remittal is not available, however, when a party is self-represented (see Opinion 04-100).

         For a period of two years after the Public Defender ceases to represent the judge’s child, the judge must, in any case where the Public Defender him/herself appears or a staff member appears who was involved in representing the judge’s child, disclose that such representation occurred. If, after such disclosure, a party objects to the judge’s continued participation in the matter, the judge must exercise discretion and determine whether recusal is warranted (see Opinion 07-128).

         With respect to other attorneys on the Public Defender’s staff who appear in the judge’s court and who have no involvement in representing the judge’s child, their partners and/or associates in private practice, or the Public Defenders partners and/or associates in private practice, the Committee previously has advised that where a judge was represented by an assistant public defender in a personal legal matter, the judge need not disqualify him/herself when other assistant public defenders appear before him/her (see Opinion 02-124). The Committee is of the view that the same conclusion applies in the present inquiry as well, both as to other attorneys on the Public Defender’s staff who have no involvement in representing the judge’s child, their partners and/or associates in private practice, and the Public Defender’s partners and/or associates in private practice.

         As for the District Attorney who initially prosecuted the judge’s child, but quickly was replaced as prosecutor by the District Attorney of a neighboring county, and the Judge who presided over the arraignment and then exercised recusal, the inquiring judge need not disqualify him/herself nor disclose their involvement in his/her child’s case when they appear before him/her. As their involvement in the case was brief and only preliminary in nature, it is the Committee’s view that the inquiring judge’s impartiality cannot reasonably be questioned when either of them appears before him/her. The same holds true for their partners and associates and for the arraigning judge’s spouse (see 22 NYCRR 100.3[E][1]).

         The Committee declines to speculate as to any additional or changed ethical obligations that might result should the judge’s child retain or be assigned a different defense attorney, or if a special prosecutor is assigned. Should either of these circumstances occur, the inquiring judge may thereafter contact the Committee for an opinion.