Opinion 09-61

April 23, 2009

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:         A judge who must disqualify him/herself in criminal cases because he/she is the District Attorney’s 4^th degree relative, nevertheless may preside when a defendant who previously has been arraigned thereafter appears in the judge’s court without representation and requests an adjournment to secure representation, as long as the judge will grant the adjournment.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinion 07-216.

Opinion:

         A judge who is disqualified in criminal cases because he/she is a 4^th degree relative of the District Attorney asks whether he/she may preside when a defendant who has been arraigned and is scheduled to thereafter appear before the judge with counsel, instead appears without counsel and asks for additional time to secure counsel. The judge advises that when the defendant appears, he/she will not adjust or fix bail, address the conditions of the defendant’s release, or change or issue an order of protection.

         A judge must avoid impropriety and its appearance (see 22 NYCRR 100.2) and must act at all times in a manner to promote public confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 07-216, the Committee advised the same judge that he/she must disqualify him/herself in all matters where the District Attorney or a member of the District Attorney’s staff appears, but that his/her disqualification is subject to remittal except in ex parte matters (such as arraignments and search warrant applications) and when a party appears without representation.

         Nevertheless, the Committee believes the judge may preside under the circumstances he/she describes, only after the judge advises the defendant of his/her relationship to the District Attorney and only if the judge will grant the adjournment. Granting an adjournment to allow a defendant more time to secure representation is essentially a ministerial act, and disqualification in such circumstances would not serve defendant’s best interests but instead would only inconvenience him/her.

         The Committee emphasizes that the inquiring judge may preside only when a defendant who already has been arraigned appears without counsel and requests an adjournment to secure counsel. And, the Committee believes it advisable for the judge to make a complete record of the defendant’s appearance. The judge may take no other action that would affect the defendant’s case. If a particular case requires any other decision beyond the adjournment, the judge must disqualify him/herself.

         Also, the Committee recommends that the inquiring judge notify his/her Administrative Judge that he/she is the District Attorney’s 4^th degree relative.