Opinion 10-112

October 28, 2010

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 problem solving court judge who does not initially refer defendants to a service provider that works with defendants who appear in the judge’s court, must disqualify him/herself from a proceeding involving a service provider that employs the judge’s spouse as an administrator when that service provider will appear or is otherwise involved in a proceeding involving a defendant’s failure to comply with the prescribed treatment program and must transfer the case to another judge. (2) A judge who has a remainder interest in a family trust that rents office space to the parent organization of a service provider that provides services to defendants who appear in the judge’s court must disqualify him/herself from all matters involving that service provider, subject to remittal.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinion 07-27; 05-152; 98-138 (Vol. XVII); 97-55 (Vol. XV); 96-90 (Vol. XIV); 91-03 (Vol. VII); Joint Opinion 07-114/07-120).

Opinion:

         A judge who presides in a problem solving court asks about the ethical implications of family relationships with an administrator of an agency that provide services to defendants who appear in the judge’s court.

         The judge advises that his/her spouse is responsible for overseeing the operations of a not-for-profit organization. The organization is one of a group of such organizations that a county appointed coordinating agency designated to provide services to defendants who appear in the judge’s court. According to the judge, his/her spouse is an administrator who does not work directly with clients receiving services. The judge further advises that he/she has “. . .no control or input into who the County assigns to [the Court] as a referral agency, and [the Judge] [has] exercised no input, and [has] no control, over who[m] that agency chooses to work with for individual cases.” The judge indicates that he/she does not preside in a case until all sides have signed a consent agreement and the defendant has entered a plea. Thereafter, the judge orders the defendant to seek treatment from the service provider already chosen by the county appointed coordinating agency. The judge also indicates that he/she has disclosed and will continue to disclose his/her spouse’s employment by the service provider and to disqualify him/herself from any hearings where the service provider is likely to be called as a witness.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (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]). 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]).

         The Committee previously has advised that a judge may refer cases to a county mediation service that employs the judge's spouse, but must recuse himself/herself in any case where the judge’s spouse was the mediator or had any connection whatsoever with a case that previously was mediated by the same mediation service (see Opinion 91-03 [Vol. VII]). Similarly, in Opinion 05-152, the Committee advised that a judge whose spouse was intake coordinator for a service provider who evaluated individuals with matters pending in the judge’s court for behavioral health referrals must disclose that the service provider employs his/her spouse. In addition, the judge must disqualify him/herself if the judge’s spouse is likely to be a material witness in the proceeding or where a party is unrepresented (see id.). A judge also must disqualify him/herself, subject to remittal, where the judge’s spouse supervises caseworkers from the local Department of Family Services who signed petition(s), and who were expected to testify or were otherwise involved in the matter before the judge (see Opinion 98-138 [Vol. XVII]).

         Unlike the circumstances in the cited opinions, the inquiring judge’s spouse does not work with clients and does not supervise anyone who does. According to the judge, his/her spouse’s responsibilities are administrative only. In addition, the inquiring judge him/herself does not refer defendants to a specific service provider. Rather, an agency that is independent from the court chooses the appropriate service provider. However, the judge does preside when a defendant is returned to court for non-compliance with his/her treatment program. At that point, a representative from the agency that employs the judge’s spouse could be a material witness or have some other involvement in the case. Therefore, the judge’s impartiality might reasonably be questioned, and the judge should disqualify him/herself (see 22 NYCRR 100.3[E][1]) and transfer the matter to another judge.

         The judge also advises that an assessment and referral agency the County designated pursuant to a grant to assist the court is part of a larger not-for-profit agency. Another division of the larger not-for-profit agency provides services to individuals appearing in the judge’s court. That division recently rented office space from a revocable family trust that the judge’s parents created many years ago. The judge indicates that he/she has no present interest in the trust, but is one of four residuary beneficiaries. The judge asks whether he/she must disqualify him/herself from cases involving the tenant organization renting office space from the judge’s family’s revocable trust.

         The Committee previously has advised that a judge who owned property in partnership with others should not lease a building to any agency that performs evaluations of and/or provides treatment to defendants who appear in the judge’s court (see Opinion 96-90 [Vol. XIV]). However, where a judge and the judge’s co-owner already had leased a building to a treatment provider that accepts referrals from the court, the Committee advised the judge to disqualify him/herself in any proceeding involving such treatment providers (see Opinion 97-55 [Vol. XV]).¹

         Because the inquiring judge has a remainder interest in the trust that rents office space to the parent organization of the service provider that appears in the judge’s court, the judge also should disqualify him/herself from all matters involving that service provider (see 22 NYCRR 100.2; 100.2[A]; Opinion 07-27 [A judge should not appoint an attorney whose firm rented office space in a building owned by the judge’s parents’ corporation to serve as a referee in a mortgage foreclosure proceeding to avoid the appearance of impropriety). However, the judge’s disqualification is subject to remittal (see 22 NYCRR 100.3[F]). Therefore, the judge may fully 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 (see id.). The agreement for remittal must be incorporated in the record of the proceeding (see id.). Nevertheless, remittal is not available when any party appears without representation (see Joint Opinion 07-114/07-120).

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             ¹In Opinion 97-55 (Vol. XV), the Committee affirmed its earlier determination in Opinion 96-90 (Vol. XIV) that a judge who owns property in partnership with others should not lease a building to any agency that performs evaluations of and/or provides treatment to defendants who appear in the judge’s court. In addition, the Committee advised that the inquiring judge should divest him/herself of his/her ownership interest in the building if the frequency of disqualification is such as to interfere with the judge’s judicial duties.