Opinion 14-07
March 13, 2014
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 formerly served in a high-ranking supervisory position in the
county attorney's office, and thus frequently represented a county
agency in neglect and abuse proceedings, either personally or through
assistant county attorneys subject to his/her supervision: (1) is
disqualified from presiding over any proceedings commenced or
prosecuted by the county attorney's office during the judge's
employment in a high-ranking supervisory capacity, and remittal is
unavailable, but (2) may preside over other matters involving individuals
who were previously respondents in neglect and abuse proceedings
brought by the judge or assistant county attorneys subject to the judge's
supervision, subject to certain limitations. Where the judge's current
law clerk was also an assistant county attorney in the same office, the
judge must insulate the law clerk from certain matters.
Rules: Family Court Act Arts. 6, 8, and 10; Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(g); 100.3(E)(1)(b)(i); 100.3(F); Opinions 13-157; 13-106; 12-36; 11-127; 11-64; 10-86; 09-139; 07-30; Joint Opinion 07-105/07-119; Opinions 99-11 (Vol. XVII); 97-08 (Vol. XV); People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring Family Court judge previously served in a high-ranking supervisory position in the county attorney’s office. During his/her former employment, the judge and/or assistant county attorneys subject to the judge’s supervision frequently represented a county agency in neglect and abuse proceedings under Family Court Act article 10. The judge asks whether he/she may preside in new matters, filed by the same county agency and county attorney’s office after the date on which he/she became a judge, involving individuals who were formerly respondents in neglect and abuse proceedings brought by the judge in his/her former capacity, or by attorneys formerly subject to the judge’s supervision. The judge notes that such individuals may now appear before him/her in custody and visitation proceedings pursuant to Family Court Act article 6, family offense proceedings pursuant to Family Court Act article 8, and other proceedings.
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]). A judge must therefore disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge must disqualify him/herself in a proceeding where “the judge knows that ... the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]). Disqualification for this reason is not subject to remittal (see 22 NYCRR 100.3[F]).1
A. Judge’s Obligations Based on His/Her Own Prior Employment
The Committee notes that, broadly speaking, there are three types of cases in which a litigant who was previously a respondent in an abuse and neglect proceeding during the judge’s tenure in the county attorney’s office might appear before the judge.
1. Same Case
The Rules Governing Judicial Conduct require disqualification when “the judge knows that ... the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]). For the purposes of Section 100.3(E)(1)(b)(i), the Committee believes it does not ordinarily matter whether a judge personally prosecuted the case or whether an assistant county attorney formerly subject to the judge’s supervision prosecuted the case. Indeed, the Committee has previously advised “that a judge who was employed by a government law office in a supervisory capacity should recuse from any cases that were pending [in that office] at the time the judge was so employed” (Joint Opinion 07-105/07-119 [describing prior opinions; emphasis added]). For example, in Opinion 99-11 (Vol. XVII), the Committee advised:
Here, in light of the judge's duties as a high-ranking deputy county attorney, it would be highly unlikely that the judge could clearly identify all matters involving various county agencies, in which the judge personally participated while serving in the County Attorney's office. Thus, to avoid the possibility of the judge presiding in such instances, we advise that the judge disqualify him/herself in any matter which was pending in the County Attorney's office while the judge was serving. 22 NYCRR 100.3(E)(1)(b)(i); Opinion 97-08 (Vol. XV).
(see also Opinions 13-157; 09-139; 07-30). Thus, if a case currently before the judge is a proceeding commenced or prosecuted by the county attorney’s office while the inquiring judge was a high-ranking employee with supervisory responsibilities, disqualification is required.
The Committee notes that the inquiring judge has expressly limited his/her inquiry to cases that were filed after the judge’s employment with the county attorney’s office ceased, so it is unlikely that this scenario will arise under the facts presented.
2. Entirely Unrelated Case
It seems equally clear to the Committee that the inquiring judge cannot be barred from presiding over all matters involving a particular individual, based solely on the fact that the individual was formerly a respondent in a neglect and abuse proceeding the county commenced while the judge was deputy county attorney and supervising assistant county attorneys.
To the contrary, where the case before the judge was not pending in the county attorney’s office when the judge was employed as deputy county attorney and where there is no substantial connection between the circumstances underlying the neglect and abuse proceeding and the facts and legal issues of the matter presently before the judge, the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) solely on the basis of his/her prior employment in the county attorney’s office. The judge therefore has no obligation to disqualify him/herself or to disclose the prior neglect and abuse proceeding or his/her connection to it.
Under such circumstances, even if the judge discloses his/her involvement in the prior neglect and abuse proceeding, the judge may preside unless he/she doubts his/her ability to be fair and impartial. Furthermore, the judge is not ethically required to recuse him/herself, even at a party’s request (see generally Opinion 10-70; People v Moreno, 70 NY2d 403 [1987]; see also Opinion 13-106 [discussing the effect of a “purely prophylactic” disclosure]).
3. Some Connection Between the Cases
The inquiring judge’s inquiry focuses primarily on the most difficult of the three scenarios, in which prior allegations of abuse and neglect in a now-concluded earlier proceeding brought during the judge’s former employment may have some relevance to the determinations the judge is being asked to make in newly filed cases, including certain custody and visitation proceedings or family offense proceedings brought by the judge’s former employer.
In the Committee’s view, if the inquiring judge knows or becomes aware that he/she or assistant county attorneys subject to his/her supervision previously litigated neglect and abuse charges against a particular respondent and if the judge concludes that such charges are materially relevant to the matter currently before the judge, then the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the former proceeding. The judge should make such disclosure in writing or on the record.
In determining whether he/she will be able to remain fair and impartial in the matter, the judge should consider such factors as: the nature and extent of his/her involvement in the prior proceeding; whether due to his/her prior employment, he/she is aware of relevant and material non-public information regarding the litigant; and whether he/she will be able to decide the case based solely on the admissible evidence and the permissible arguments and considerations actually presented in the proceeding before him/her. Thereafter, even if a party objects, the judge may preside as long as he/she concludes that he/she can remain fair and impartial in the present proceeding (see generally People v Moreno, 70 NY2d 403 [1987]).
Because disclosure is required in this circumstance in lieu of outright disqualification, the judge must nevertheless disqualify him/herself if any litigant is appearing without counsel, and remittal is not permitted (see e.g. Opinions 12-36; 11-127).
In addition, if the judge concludes that he/she is not legally permitted to make the ethically mandated disclosure, he/she must simply disqualify him/herself from the matter (cf. Opinion 10-86 [remittal of disqualification is not available where disclosure of the judge’s reason for disqualification would breach the lawyer’s right to confidentiality in disciplinary process]).
B. Judge’s Obligations Based on Law Clerk’s Prior Employment
Finally, the judge also asks about the judge’s obligations if a case involves a litigant who had previously been a respondent in a neglect or abuse proceeding that the judge’s law clerk had previously prosecuted. The judge advises that his/her law clerk also was a deputy county attorney and subject to his/her supervision.
If the judge has determined that he/she may preside in a particular matter under Part A of this Opinion, the judge is not disqualified merely due to his/her law clerk’s prior employment (see e.g. Joint Opinion 07-105/07-119). The Committee has previously advised (id.):
A judge whose law clerk formerly worked for a government law office may preside when his/her law clerk’s former employer appears in a proceeding, but should insulate the law clerk and disclose the prior employment when the law clerk was personally involved in the case. Where the law clerk held a supervisory position with the government law office, the judge need not insulate the law clerk when the law clerk’s former employer appears in a proceeding if (a) the law clerk had no direct personal involvement in the matter and the law clerk’s name is not included in the papers, or (b) the matter is uncontested. Upon application for recusal, the judge should exercise discretion in light of the facts presented.
The same principles apply here.
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1 There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[g]) or Judiciary Law §14. If none of those enumerated circumstances applies, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).