Opinion 14-32
April 24, 2014
Digest: (1) Where a prospective witness and alleged victim in a criminal case is the presiding judge’s former client on a single unrelated misdemeanor case that concluded more than five years ago, and the case currently before the judge will be tried by a jury, the judge has no obligation to disclose the former representation or disqualify him/herself from the criminal case. (2) Where a prospective witness and alleged victim in a criminal case was formerly a respondent in a case the judge prosecuted in his/her former capacity as a government attorney, and there is no substantial connection between the circumstances underlying the prior case and the facts and legal issues of the criminal case, the judge has no obligation to disclose the former adversarial relationship or disqualify him/herself from the criminal case.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 14-10; 14-07; 13-62; 11-64; 10-56; 07-35; 92-14 (Vol. IX); Joint Opinions 90-169/90-183 (Vol. VI); 88-120/88-125 (Vol. II); People v Moreno, 70 NY2d 403 (1987).
Opinion:
A full-time judge asks if he/she must disclose his/her prior professional connections with two alleged crime victims, who may be called as witnesses in a criminal case pending before the judge. The case will be tried before a jury. The judge previously represented “Witness A” as an assigned criminal defense attorney for an unrelated misdemeanor charge, which was fully concluded more than five years ago. Approximately four years ago, in the judge’s former capacity as a government attorney, the judge prosecuted an unrelated case against “Witness B” in Family 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 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 ... 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
1. Former Client
The Committee has previously considered whether a judge may preside over a criminal matter that is currently scheduled for a jury trial, where “a prospective witness, who may be called by either or both sides, is a former client of the judge on an unrelated matter” (Opinion 13-62). The Committee advised the judge may preside after full disclosure of the prior representation to all sides, provided a jury will hear the evidence and render a verdict in the case (see Opinions 13-62; 92-14 [Vol. IX]). The Committee emphasized that disclosure of the prior representation was mandatory, but after disclosure, the judge retains full discretion whether to preside even if a party objects to the judge’s participation in the case (see Opinions 13-62; 92-14 [Vol. IX]).
However, the prior representation in Opinion 13-62 had ended less than two years ago (see id. at n.1). The Committee did not address the question of how long ago the prior representation had ended in Opinion 92-14 (Vol. IX), but noted the inquirer had only “recently” become a judge (id.). The present inquiry thus presents a new issue: Is disclosure mandatory when the former representation fully concluded more than five years ago?
The Committee has previously advised that the Rules Governing Judicial Conduct do not specify a precise time period beyond which a judge’s impartiality can no longer be “reasonably questioned” based on his/her now concluded representation of a former client (see Opinion 07-35; 22 NYCRR 100.3[E][1]). However, the Committee has also suggested that, when an attorney currently appearing before the judge previously represented the judge in a legal matter, the need for disclosure may eventually diminish over time (see Opinion 10-56). In Opinion 10-56, the Committee advised the following factors “bear on” whether a judge must continue to disclose that an attorney appearing before the judge previously represented the judge more than two years earlier:
. . . the nature of the instant proceeding, the nature of the prior representation by the attorney, as well as its frequency and duration, . . . the amount of work done for the judge by the attorney and the amount of fee, whether the representation was routine or technical or involved the morality of the judge's conduct, whether there exists a social relationship between the judge and the judge's former attorney, and whether there are any special circumstances creating a likely appearance of impropriety.
(Id., quoting Joint Opinion 88-120/88-125 [Vol. II]).
Moreover, in Joint Opinion 90-169/90-183 (Vol. VI), the Committee advised that where five years had passed since the last, and apparently only, time an attorney represented a judge and the representation appeared to have involved a relatively simple matter, the judge need not continue affirmatively to disclose the connection with the attorney, if the judge believed he/she could be impartial.
The Committee believes similar principles apply in the present inquiry. The criminal case is to be tried by a jury, and the judge’s only prior representation of “Witness A” was as assigned counsel in a single misdemeanor-level criminal matter, which was fully concluded more than five years ago. The inquiry reveals no connections between the facts and circumstances of the prior misdemeanor charges against “Witness A” and the facts and legal issues of the criminal case now pending before the judge, in which “Witness A” is a complainant and alleged victim.
Accordingly, the Committee concludes the inquiring judge’s impartiality cannot be reasonably questioned under the circumstances presented, and neither disclosure nor disqualification is required, based solely on the judge’s prior representation of “Witness A” (see Opinions 13-62; 10-56; 92-14 [Vol. IX]; Joint Opinion 90-169/90-183 [Vol. VI]; 22 NYCRR 100.3[E][1]). Therefore, the judge may preside over the present jury trial involving “Witness A,” provided the judge concludes he/she can be fair and impartial, a matter left to the judge’s sole discretion (see People v Moreno, 70 NY2d 403, 405 [1987]).
2. Individual Judge Formerly Prosecuted
The Committee has recently considered the disqualification obligations of a judge who previously served in a prosecutorial or quasi-prosecutorial role in his/her former employment as a government attorney (see Opinions 14-07; 14-10). For example, the Committee advised a judge who previously served as a District Attorney is not barred from presiding over all matters involving a particular individual, based solely on the fact the individual was previously a criminal defendant in a matter the inquiring judge investigated or prosecuted or an assistant district attorney under his/her supervision (see Opinion 14-10).
In Opinion 14-07, the inquiring Family Court judge had previously 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. The judge noted some former respondents or supervisees in those proceedings might now appear before him/her in the course of custody and visitation, family offense, and certain other proceedings (see Opinion 14-07). The Committee advised:
[T]he 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.
(Opinion 14-07).
The Committee believes that these principles are easily applied to the present inquiry. The criminal case currently before the judge was never pending before the government agency that previously employed the judge. Nor is there anything in the present inquiry to suggest that there is any “substantial connection” between the circumstances underlying the proceeding the judge pursued against “Witness B” several years ago, and the facts and legal issues of the criminal case now pending before the judge, in which “Witness B” is a complainant and alleged victim. Accordingly, under the facts presented, the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) in the present case, and the judge therefore has no obligation to disqualify him/herself or to disclose the prior proceeding or his/her connection to it (see Opinions 14-10; 14-07). The judge may therefore preside over the present criminal case involving “Witness B,” provided the judge concludes he/she can be fair and impartial, a matter left to the judge’s sole discretion (see People v Moreno, 70 NY2d 403, 405 [1987]).
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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]-[f]) 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 these objective standards, 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).