Opinion 13-162

December 12, 2013

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 co-owns a rental building with an attorney may not preside over matters in which his/her co-owner appears, unless there is remittal of disqualification.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(g); 100.3(F); 100.6(B)(3); Opinions 11-89; 09-138; Joint Opinion 07-114/07-120; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring town judge states that he/she co-owns a rental building with an attorney who has recently been appointed as town prosecutor.¹ Under these circumstances, the judge asks whether he/she may preside over matters in which the attorney appears.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, a judge must disqualify him/herself in certain circumstances as set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[g]) or Judiciary Law §14, or in any other case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).²

         The Committee previously has advised that a judge who is a landlord must disqualify him/herself when the judge’s attorney/tenant appears in the judge’s court, although such disqualification is subject to remittal unless a party appears without counsel (see, e.g., Opinion 11-89; see also 22 NYCRR 100.3[E][1]; 100.3[F]).

         Here, of course, the judge and attorney have no landlord/tenant relationship; they are co-owners/landlords of a building. Thus, similar principles apply since their co-owner status of a rental building gives them an ongoing business relationship and common financial interests which could cause, or appear to cause, the judge’s impartiality to be reasonably questioned when the attorney/co-owner appears (see 22 NYCRR 100.3[E][1]).

         Therefore, under the facts presented, the inquiring town judge may not preside over matters where his/her co-owner appears as a prosecutor. However, the judge’s disqualification is subject to remittal when a defendant is represented by counsel.³

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     ¹ Although the town judge and the attorney also maintain their own separate law offices in the building, under the facts presented, it appears that they are not “associates” within the meaning of Section 100.6(B)(3) (see Opinion 11-89).

     ² If disqualification is not mandated under these objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

     ³ Where permitted, remittal is a three-step process: “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” (Opinion 09-138; 22 NYCRR 100.3[F]). Disqualification is not subject to remittal if a party is unrepresented (see Joint Opinion 07-114/07-120).