Opinion 13-26

September 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 is not required to disqualify him/herself when an attorney, who represents the judge’s law clerk or secretary or who is a relative of the judge’s law clerk or secretary within the fourth degree, appears in the judge’s court. The judge must disclose the relationship and that he/she will insulate the law clerk or secretary from the attorney’s and the attorney’s law firm’s cases. After such disclosure, if a party objects to the judge’s continued participation in the case, the judge has the sole discretion to decide whether to exercise recusal.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 11-151; 11-99; 11-72(A); 10-201; 10-72; 09-161; 09-154; 08-134; 08-126; 06-127; 05-151; 05-49; 03-30; 02-112; 99-49 (Vol. XVII); 99-35 (Vol. XVII); 98-25 (Vol. XVI); 90-196 (Vol. VI); 90-33 (Vol. V); 88-140 (Vol. III).

Opinion:

         A judge asks whether he/she must disqualify him/herself when the attorney who is representing his/her secretary in an unrelated legal matter regarding the secretary’s recent divorce appears in the judge’s court.

         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]). Therefore, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law §14).

         In prior Opinions, the Committee has distinguished between attorneys who have a professional relationship with a judge’s personal appointee and attorneys who have a personal relationship with the judge’s personal appointee.

         Where the relationship between the appointee and the attorney is personal - i.e., a spouse, significant other, sibling or other relative within the fourth degree of relationship by blood or marriage - the Committee has previously advised that the judge must disqualify him/herself, subject to remittal, and upon remittal, the judge must insulate the law clerk or secretary (see Opinions 08-126; 05-151; 05-49). The Committee notes that this rule can potentially have broad impacts on a judge’s ability to preside, because it prevents a judge from presiding if any party objects - even if the objection is frivolous.

         By contrast, where the relationship is professional, the Committee has advised that only disclosure and insulation is required. That is, the judge need only disclose that the attorney represents the judge’s law clerk or secretary in a personal legal matter, the nature of the matter, and that the law clerk or secretary has been insulated from the particular case and all other cases in which the attorney or the attorney’s law firm appears (see Opinions 11-72[A]; 10-201; 08-134). The judge may continue to preside if the judge can be fair and impartial even if, based on the judge’s disclosure, a party objects to the judge’s continued participation in the case (see Opinion 10-201).

         On further consideration, the Committee is concerned that this disparate treatment may be difficult for judges to remember and follow – and the “personal relationship” rule is likely to force disqualification in many circumstances where the judge’s impartiality cannot reasonably be questioned. Therefore, the Committee concludes that a single, easily remembered rule concerning a judge’s obligations when an attorney appearing before the judge has a relationship with the judge’s law clerk or secretary (whether personal or professional) will facilitate compliance.

         Therefore, the Committee is now of the view that whether an attorney appearing in the judge’s court has a personal or professional relationship with the judge’s law clerk or secretary (as defined above), the judge need not disqualify him/herself.¹

         Rather, provided no party is appearing without counsel, the judge may continue to preside if the judge concludes that he/she can be fair and impartial. However, the judge must disclose the existence of the relationship when the attorney or the attorney’s law firm appears in the judge’s court and must also disclose that the law clerk or secretary will be insulated from all cases involving the attorney or the attorney’s law firm. If a party objects to the judge’s continued involvement in the case, whether to continue to preside is solely within the judge’s discretion. (Because disclosure is mandated here in lieu of disqualification, the judge must simply disqualify him/herself if any party is proceeding without legal representation.)

         If the attorney is a private practitioner, the judge’s disclosure obligation extends to the attorney’s partners and associates (see Opinions 11-99; 10-201). However, if the attorney appears on behalf of a public law office, the judge’s obligation is limited to those cases where the attorney actually appears or has had some involvement, such as supervising the attorney who actually appears (see Opinion 11-151).

         In Opinion 11-72(A), the Committee advised that when a judge discloses a law clerk’s professional relationship with an attorney appearing in the judge’s court, the judge must also disclose the nature of the law clerk’s personal legal matter. However, in Opinion 10-72, the Committee advised that a judge need not disclose the nature of the judge’s secretary’s personal legal matter when the attorney representing the secretary appears in the judge’s court. Again, the Committee is of the view that a uniform rule should apply whether an attorney represents the judge’s law clerk or secretary. And, the Committee believes the judge should have the sole discretion to decide whether to disclose the nature of the staffer’s legal matter as the judge is in the best position to evaluate whether and to what extent disclosure of that information is necessary in the particular case.

         In addition, in Opinion 10-201, the Committee advised that a judge must continue to insulate his/her law clerk for a period of two years after the law clerk’s personal legal matter is concluded when the law firm that represented the law clerk appears before the judge. However, the Committee now is of the view that the insulation need only continue until the matter is concluded and the law clerk has paid all fees due and owing.

         In light of the foregoing, Opinions 11-151, 11-99, 11-72(A), 10-201, 10-72, 09-161, 09-154, 08-134, 08-126, 06-127, 05-151, 05-49, 02-112, 99-49 (Vol. XVII), 98-25 (Vol. XVI), 90-196 (Vol. VI), 90-33 (Vol. V), 88-140 (Vol. III) are modified to be consistent with this Opinion. In addition, Opinions 03-30 and 99-35 (Vol. XVII), which the Committee overruled in Opinion 08-126, are re-instated and also modified to be consistent with this opinion.

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     ¹ Accordingly, a judge should advise each of his/her personal appointees to notify the judge if the law firm employer of any relative of the appointee within the fourth degree of relationship (or the law firm employer of the appointee’s significant other) is likely to, or does, appear in the judge’s court.