Opinion 12-105

June 14, 2012

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 must disqualify him/herself, subject to remittal, when the manufactured home park that employs the judge's child appears in the judge's court as a party.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 11-152(A); 10-146; 09-138; 99-87 (Vol. XVIII); 88-105 (Vol. II);

Opinion:

         A part-time town justice advises that a large local manufactured home park (Park) recently hired the judge's adult child, who lives in the judge's home, to work full-time in the Park maintenance department. The judge further advises that the Park owner brings approximately 15-25 summary proceedings annually, the overwhelming majority involving non-payment of rent. According to the judge, an attorney appears to represent the Park and the Park owner is usually present in court as well. The judge asks whether he/she must disqualify him/herself from these summary proceedings because of his/her child's employment with the Park maintenance department.

         A judge must always avoid even the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and must always act to promote the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, a judge must not allow family relationships to influence the judge's judicial conduct or judgment (see 22 NYCRR 100.2[B]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that a town justice whose spouse is employed as a secretary for a bank must disqualify him/herself when the bank appears as a party in the judge's court, subject to remittal (see Opinion 88-105 [Vol. II]). Similarly, the Committee has advised that a judge whose spouse is employed as a paralegal for a law firm must disqualify him/herself when the law firm appears in the judge's court, subject to remittal (see Opinion 99-87 [Vol. XVIII]). In the Committee's view, should the Park that employs the inquiring judge's adult child appear in the judge's court, the judge's impartiality could reasonably be questioned. Therefore, the inquiring judge also must disqualify him/herself when the Park that employs the judge's child appears in the judge's court (see 22 NYCRR 100.3[E][1]). And, the judge's disqualification is subject to remittal unless a party appears without a lawyer (see Opinion 10-146).

         Remittal involves three-steps (Opinion 09-138, relying on 22 NYCRR 100.3[F]):

First, the judge must fully disclose the basis for disqualification on the record... Second, ... without the judge's participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties' and their attorneys' agreement into the record of the proceeding.

(See also Opinion 11-152[A]).