Opinion 13-62

October 24, 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:         Where a prospective witness in a criminal case is the presiding judge’s former client and a jury will hear the evidence and render a verdict, the judge may preside after full disclosure of the prior representation to all sides, including the pro se defendant and his/her standby counsel. If a party objects to the judge’s continued participation in the case, the judge has the sole discretion to recuse or continue to preside.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 12-36; 92-14 (Vol. IX).

Opinion:

         A judge asks whether he/she may preside over a criminal matter that was recently transferred to the judge and is currently scheduled for a jury trial. The judge states that a prospective witness, who may be called by either or both sides, is a former client of the judge on an unrelated matter.¹ The judge states that the defendant is appearing pro se, although a public defender has been appointed as “standby counsel.” The judge believes that he/she can be fair and impartial.

         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 disqualify him/herself in any proceeding where the judge ’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that if a judge’s former client appears as a witness in a matter before the judge, the judge may preside, following disclosure on the record, if a jury will hear the evidence and render a verdict in the case (see Opinion 92-14 [Vol. IX]). Ordinarily, where disclosure is mandated in lieu of disqualification, the judge must disqualify him/herself if any party is appearing without legal representation (see Opinion 12-36). Here, however, the pro se defendant has standby counsel. Accordingly, the judge must disclose his/her prior representation of the prospective witness on the record to all parties and their attorneys, including the defendant’s standby counsel; and may thereafter preside as long as the judge believes he/she can be fair and impartial. If a party objects to the judge’s continued participation in the case, the judge has the sole discretion to recuse or continue to preside.

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     ¹ The judge states that the representation commenced less than two years ago. Although the judge does not state when representation ended, it involved a discrete issue, and it appears that the judge has received his/her fee and the matter is fully concluded.