Opinion 14-51
September 4, 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: (1) For two years after entry of judgment in the trial phase of a judge’s
second-degree relative’s criminal proceedings, provided the judge
determines he/she can be fair and impartial, disclosure is mandated in
lieu of disqualification when any prosecutor or defender who was
personally involved at the trial phase appears before the judge on
unrelated matters. If, after disclosure, a party objects to the judge
presiding, the judge has discretion whether to recuse after considering
all relevant factors. After the two-year period ends, the judge is not
ethically required to disclose or recuse when these attorneys appear,
provided he/she can be fair and impartial. (2) The judge is disqualified,
subject to remittal, when an attorney who is personally involved in
handling the judge’s relative’s appeal of the conviction appears, until
entry of judgment on the appeal. For two years after entry of judgment
on the appeal, disclosure is mandated in lieu of disqualification for the
specific attorneys involved. After the two-year period, the judge has no
further obligation, provided he/she can be fair and impartial. (3) The
judge need not disclose or recuse when the assistant public defender
who was initially appointed to represent the judge’s relative on appeal
appears, as the attorney’s involvement in the judge’s relative’s case
was brief and preliminary in nature.
Rules: Judiciary Law § 14; Criminal Procedure Law §§ 530.20[2] and 140.20; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 14-60; 14-27; 13-132; 12-111; 11-151; 11-139; 11-127; 11-95; 11-64; 10-56; 09-138; 08-165; 90-18 (Vol. VI); Joint Opinions 08-183/08-202/09-112; 08-171/08-174; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge states that, before he/she assumed the bench, a relative within the second degree of relationship by blood or marriage1 was tried, convicted, and sentenced in the same county in which the judge now presides, and a high-ranking assistant district attorney with supervisory responsibilities (the “Supervising ADA”) prosecuted the charges. The Public Defender represented the judge’s relative. The judge notes he/she was called to testify on behalf of his/her relative and was cross-examined by the Supervising ADA.2 The judge advises that other assistant district attorneys in the same office regularly appear before the judge and asks about his/her obligations when the Public Defender, the Supervising ADA, or other attorneys from the Public Defender’s office or the District Attorney’s office appear before him/her. If disclosure is mandatory, the judge asks whether it is sufficient to state that the attorney currently appearing before him/her (or, if appropriate, another attorney in the same office) “represented/prosecuted my [relative] on a [number]-count indictment in [year] that led to a conviction and that my [relative] was sentenced to prison in [year],” without additional details about the charges or sentence.
The judge also specifically asks for guidance on handling after-hours arraignments, as frequently “neither the prosecutor nor defense attorney is present..., although on felonies I have the police get a bail recommendation from the DA’s office before I do the arraignment.” The judge expresses the concern that if disclosure or disqualification is mandated in all criminal matters, the judge would effectively be precluded from handling any after-hours arraignments.
The judge further states that his/her relative has appealed the conviction, and a new assistant public defender was briefly assigned to represent the judge’s relative, but took no “substantive action” on the appeal before he/she was discharged and the judge’s relative retained a private attorney.3 The judge asks about his/her obligations with respect to the briefly retained assistant public defender and the prosecutor who is handling the appeal. Finally, the judge asks when his/her disclosure or disqualification obligations end.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes 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]). Where, as here, the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), the remaining issue is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective test, 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).
1. Obligations Resulting from Trial Phase
During the Prosecution
The Committee has previously advised that a judge is disqualified, subject to remittal where permitted,4 when an attorney who is currently personally involved in prosecuting or defending the judge’s first-degree or second-degree relative appears before the judge (see Opinions 14-60; 13-132; 11-139; 11-95; 08-165). This obligation ends with the entry of judgment (see Opinion 14-60 [modifying prior opinions]).
Two Years After Entry of Judgment
For a two-year period after entry of judgment, the judge must disclose the former representation when an attorney who formerly prosecuted his/her relative appears before the judge (see Opinion 11-95). Because disclosure is mandated in lieu of outright disqualification during this period, the judge must nevertheless disqualify him/herself if (a) any party appears without representation, (b) the judge does not wish to make full disclosure of the former prosecution of his/her relative (see Opinion 12-111), or (c) the judge is not legally or ethically permitted to fully disclose the prosecution (see e.g. Joint Opinion 08-183/08-202/09-112). If, after disclosure, a party objects to the judge presiding, the judge may exercise his/her sole discretion in determining whether to disqualify him/herself after considering all relevant factors (see People v Moreno, 70 NY2d 403 [1987]). As the Committee has advised in other contexts, such factors may include, but are not limited to:
the nature of the instant proceeding [before the judge], the nature of the prior [prosecution of the judge’s relative], as well as its ... duration, ... whether the [prosecution] was routine or technical or involved the morality of the [judge’s relative’s] conduct, ... and whether there are any special circumstances creating a likely appearance of impropriety
(Opinion 10-56). The Committee notes that, while these factors are instructive, they may not cover every future fact pattern. Judges may always consult the Committee for further guidance on additional factors that may be relevant to their particular circumstances (see id.).
After Two Years
After the two-year period, the judge need not make any disclosures when the attorney who formerly prosecuted the judge’s relative appears before the judge, unless the judge concludes, in his/her sole discretion, that disclosure is warranted based on the factors set forth above or based on any other relevant circumstances. Because disclosure is not mandated after the two-year period has concluded, the judge is not disqualified from presiding over cases in which the attorney appears, even if another party is appearing without legal representation (see e.g. Opinion 14-27).
Effect of Judge’s Cross-Examination at Trial
Moreover, this result does not change merely because the Supervising ADA cross-examined the judge at the judge’s relative’s trial. The Committee has previously advised that a part-time lawyer/judge may preside at a criminal trial where the defendant is represented by an attorney who cross-examined the judge as a witness in a civil proceeding in another court (see Opinion 90-18 [Vol. VI]). The Committee stated:
Should the judge conclude that [his/her] experience with the attorney in question will prevent [his/her] presiding at the pending criminal trial in a fair, impartial and unbiased manner, then the judge, sua sponte, should recuse [him/her]self. However, the mere fact that the judge was cross-examined in a civil proceeding by an attorney who will be representing a defendant in a criminal jury trial before the judge, is not a ground for mandatory recusal or disqualification.
(id.). The Committee continues to adhere to this view.
Application to After-Hours Arraignments
Although the same principles apply when the judge conducts after-hours arraignments, the Committee wishes to comment specifically on the circumstances the judge describes.
It must be emphasized that the obligations described above are not triggered automatically in every criminal case; they are triggered by the involvement of specific individual attorney(s) in a specific criminal case.
If no attorneys are involved in a particular after-hours arraignment (because the defendant is appearing pro se and the prosecution is represented solely by a law enforcement officer), then there is necessarily no involvement of any attorney who will trigger the inquiring judge’s disclosure and/or disqualification obligations. If one of the “triggering” attorneys later becomes involved in the case, the judge should handle it as described above.
When a police officer contacts the judge to conduct an after-hours arraignment for a defendant charged with a felony, the judge should ask the officer the identity of the assistant district attorney available to provide a bail recommendation.5 If that attorney is not one of the “triggering” attorneys, the judge may agree to conduct the arraignment. However, if the assistant district attorney available to provide the bail recommendation is one whose participation in the case requires disclosure or disqualification and no other attorney is available to provide a bail recommendation, the judge must decline to conduct the arraignment.6 If another attorney is available to provide the bail recommendation, the judge may agree to conduct the arraignment.
Summary
Accordingly, because the inquiring judge’s relative has already been convicted and sentenced and judgment has been entered, the trial phase of the criminal proceedings is over and, assuming the judge determines that he/she can be fair and impartial, the judge is not disqualified in matters where the Supervising ADA or the Public Defender appear before the judge, based solely on their prior participation at the trial phase, the judge’s participation as a witness at the trial, and/or the Supervising ADA’s cross-examination of the judge (see Opinions 14-60).7 However, as noted above, disclosure is mandatory for a two-year period following entry of judgment; as a result, if a party appears without representation or if the judge is unwilling or unable to make full disclosure, the judge must exercise disqualification during this two-year period.
2. Obligations Resulting from Appellate Phase
The same principles outlined above apply for the attorneys involved at the appellate phase or any subsequent stage of the judge’s relative’s criminal case.
Thus, with respect to the current appellate phase of the criminal matter involving the judge’s relative, the judge is disqualified, subject to remittal, for any member of the district attorney’s staff who is personally involved in the appeal (see Opinion 14-60). That is, the disqualification only extends to the assistant district attorneys who are personally involved in handling the appeal and not to others from the same office, even if they are subject to the supervision of a more senior prosecutor who is personally involved in the judge’s relative’s appeal (see id.). Disqualification for this reason is subject to remittal, unless a party appears without representation (see Opinion 11-127), as the inquiring judge has noted is typical in after-hours arraignments. The obligation continues until entry of judgment on the appeal (see Opinion 14-60). Thereafter, the two-year disclosure requirement applies.
With respect to the assistant public defender who was briefly retained for the appeal, but performed no substantive work, the Committee believes neither disclosure nor disqualification is required where the defender’s involvement in the judge’s relative’s case was “brief and preliminary in nature” (Opinion 08-165).
3. Additional Issues of General Applicability
Other Attorneys from the Same Office
As noted above, the Committee requires disclosure and disqualification only for the attorneys personally involved in the defense or prosecution of the judge’s relative. This can present practical difficulties for the judge, as “it may be difficult for the judge to know which [attorneys] have worked on the judge’s [relative’s] case, and to what extent, as assignments within a law office may change, and attorneys who are not formally assigned to a matter may informally consult with other colleagues from time to time” (Opinion 11-139).
The judge may determine whether an attorney from the same public or private law office has had any involvement in the judge’s relative’s criminal case by inquiring on the record each time the attorney appears in the judge’s court (see Opinions 13-132; 11-151; 11-139). Alternatively, in the judge’s discretion, when an attorney from the same public or private law office appears before the judge and advises the judge that he/she is not involved in the judge’s relative’s criminal case:
(A) the judge may invite that attorney, or his/her law office, to provide the judge with a complete written list of the attorney colleagues who are involved in the judge’s relative’s criminal case, along with written assurance that other attorney colleagues will be completely insulated from the matter (cf. Opinion 14-27 [judge may, in his/her discretion, invite a private law firm to create an ethical screen or wall for the judge’s former law clerk who is now an associate of the firm]); or
(B) the judge may direct that attorney, on the record, to advise the judge if the attorney becomes involved in the judge’s relative’s case (cf. Opinion 11-139); or
(C) if another attorney from the same public or private law office appears before the judge and advises the judge that he/she is not involved in the judge’s relative’s criminal case, the judge may direct that attorney, or his/her law office, by letter, to advise the judge if the attorney currently appearing before the judge becomes involved in the judge’s relative’s case (cf. Opinions 11-151; 11-139).
Thereafter, if the judge is satisfied that the attorney appearing before the judge (and, if applicable, other specified attorneys at the public or private law office) will be effectively insulated from the judge’s relative’s criminal case, the judge may rely on this representation and need not disqualify him/herself from all matters involving the law office, when attorneys who are not personally involved in the judge’s relative’s criminal case appear before the judge (cf. Opinions 14-27 [judge may, in his/her discretion, invite a private law firm to create an ethical screen or wall for the judge’s former law clerk]; 11-151 [procedures when the judge’s law clerk’s spouse is an assistant district attorney]; 11-139 [procedures when a public defender’s office represents the judge’s child]).
Extent of Required Disclosures
Finally, in response to the inquirer’s question, the Committee concludes with a brief comment on the extent of disclosure required, either as part of the remittal process or pursuant to the two-year disclosure requirement where applicable.
As the Committee has previously advised, “[o]nly with full disclosure can the parties and their counsel intelligently determine whether to ask the judge to exercise recusal” (Joint Opinion 08-171/08-174). The Committee believes that full disclosure with respect to an attorney who helped prosecute or defend a relative’s criminal case should ordinarily include information such as:
(1) The degree of relationship between the judge and his/her relative;
(2) Whether the attorney currently appearing before the judge defended or prosecuted the judge’s relative;
(3) The criminal charges asserted against the judge’s relative;
(4) The nature and extent of the judge’s personal involvement in the case, if any; and
(5) Information concerning the disposition of the case. To the extent applicable, the judge should share his/her current understanding of whether the relative was convicted or acquitted, the year in which judgment was entered in the most recent stage of the proceedings, and whether an appeal or additional collateral proceedings are pending or impending.
In general, the judge should strive to provide information that will allow the parties and their attorneys to “intelligently determine” whether to object to the judge presiding over the matter (Joint Opinion 08-171/08-174).
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1 A second-degree relative by blood or marriage includes a sibling, step-sibling, grandparent, step-grandparent, grandchild, or step-grandchild (see generally 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system”]; see also Opinions 13-132 and 12-178).
2 The judge states he/she “did not witness any of the incidents alleged in the indictment,” but was called to testify about his/her relationship with certain individuals who were referred to in the indictment, including his/her relative.
3 The judge states the assistant public defender ordered the trial transcript and filed a motion to extend the time to appeal but took no further action before he/she was discharged from the representation.
4 Remittal is not available if any party is appearing without counsel or if the judge is not willing or able to make full disclosure of the basis for disqualification. 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, relying on 22 NYCRR 100.3[F]).
5 A local criminal court judge may not order recognizance or bail when a defendant is charged with a felony without affording the District Attorney the opportunity to be heard (see CPL §530.20[2]).
6 See generally CPL 140.20.
7 Of course, if one or more of these specific attorneys are personally involved in the appeal, then the judge must disqualify him/herself, subject to remittal, until entry of judgment on the appeal. But for attorneys who were involved only at the trial level and not in the appeal, there is only a two-year disclosure obligation after entry of judgment at the conclusion of the trial (see Opinions 14-60; 13-132).