Opinion 14-60
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) A judge whose first-degree relative has been arraigned on criminal
charges is disqualified, subject to remittal, when a prosecutor who is
personally involved in the criminal case appears before the judge. This
obligation persists until entry of judgment. For two years after entry of
judgment, disclosure is mandated in lieu of disqualification when a
prosecutor who was personally involved in 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 need not disclose or recuse when other prosecutors from the same
office appear before the judge, provided they are not personally
involved in the criminal case against the judge’s relative and further
provided the judge concludes he/she can be fair and impartial. This
result does not change merely because the assistant district attorney
appearing before the judge is subject to the supervision of a more senior
prosecutor who is personally involved in prosecuting the judge’s first-degree relative. (3) The same principles apply at each stage of the
criminal proceedings: the judge is disqualified, subject to remittal, for
all attorneys who are personally involved in that stage of the
proceedings, until entry of judgment for that stage of the proceedings;
and disclosure is mandatory for two years after entry of judgment when
the attorneys involved in that phase appear before the judge.
Rules: Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-51; 14-27; 12-111; 11-139; 11-127; 11-95; 11-64; 10-56; 10-05; 09-138; 08-212; 08-165; 07-216; Joint Opinions 08-183/08-202/09-112; 08-171/08-174; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge states his/her first-degree relative1 has been arraigned in the same county in which the judge presides, and a high-ranking assistant district attorney with supervisory responsibilities (the “Supervising ADA”) is prosecuting the charges. The judge advises that other assistant district attorneys in the same office regularly appear before the judge and asks about his/her obligations when such attorneys appear. The judge further asks about his/her obligations when the Supervising ADA “is second seating” a case before the judge. Finally, the judge asks when any such 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]).2
1. During the Prosecution
The Committee has previously advised that a judge is disqualified, subject to remittal where permitted, when an attorney who is personally involved in prosecuting the judge’s child appears before the judge (see Opinion 11-95). Moreover, in Opinion 11-95, the Committee advised that, while criminal charges are pending against a judge’s child, the same disqualification standard applies to the district attorney’s office and to the public defender’s office (see Opinion 11-95, following Opinion 08-165).
Accordingly, disqualification is also required for any member of the district attorney’s staff who is personally involved in prosecuting the inquiring judge’s first-degree relative (see Opinions 11-139; 08-165). Disqualification on this ground is subject to remittal, unless a party appears without counsel (see Opinion 11-127).3
With respect to other assistant district attorneys who report to the Supervising ADA, but “who have no involvement in” prosecuting the judge’s first-degree relative, the Committee concludes the inquiring judge need not disqualify him/herself, provided the judge can be fair and impartial (see Opinion 08-165).4 Opinion 14-51 provides certain practical suggestions on how to facilitate handling matters in which other attorneys from the same office appear.
Duration of the Obligation
The Committee has previously advised that a judge is disqualified subject to remittal until criminal charges against the judge’s relative “are completely resolved (that is, after there is a final judgment of acquittal or dismissal or, if there is a guilty plea or other finding of guilt, after the defendant has fulfilled any sentence imposed and appeals, if any, have been concluded)” (Opinion 11-95).
On further consideration, however, the Committee believes this standard for determining when a criminal case is “completely resolved” is unduly restrictive. The appellate process alone may take months or even years, depending on the issues involved, and a criminal defendant’s sentence may, in some cases, last longer than an entire legal or judicial career. Where, as here, disqualification is required only for the specific attorney(s) who are personally involved in the prosecution, the Committee believes that such disqualification should end with the entry of judgment. Accordingly, Opinion 11-95 is modified to reflect this view.
2. 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 Opinions 14-51; 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, or (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 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).
Appeal or other Collateral Proceedings
If, following entry of judgment in the original criminal case, there is an appeal or other subsequent proceedings, the judge’s ethical obligation extends only to those attorneys personally involved in the appeal or that phase of the proceedings. In other words, for each phase of the proceedings, the disqualification ends with the entry of judgment (see Opinion 14-51).
Application/Conclusion
Under the facts presented, the inquiring judge is disqualified, subject to remittal, when the Supervising ADA appears before the judge, including when the Supervising ADA is “second seating” a case before the judge. This obligation persists until entry of judgment in the criminal case. Thereafter, for a two-year period, disclosure is required in lieu of disqualification.
Applying these principles, the Committee observes that the judge may not preside without full disclosure and remittal of disqualification from the time of arraignment up until entry of judgment and may not preside without full disclosure for two years following entry of judgment. Because disclosure is mandatory during this entire period when the Supervising ADA appears, the judge may not preside if another party is appearing without counsel or if the judge is unwilling or unable to make full disclosure to permit the parties and their attorneys to “intelligently determine” whether to object to the judge presiding over the matter (Joint Opinion 08-171/08-174; see generally Opinion 14-51).
The same principles apply to all assistant district attorneys who are personally involved in prosecuting the judge’s relative.
However, the judge may continue to preside in other cases involving the same district attorney’s office, provided the specific prosecutors who appear before the judge are not personally involved in the judge’s first-degree relative’s criminal case.
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1 A first degree relative by blood or marriage includes a parent, step-parent, child, or step-child (see generally 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system”]; see also Opinions 13-132, 12-178).
2 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).
3 As described in Opinion 09-138, 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]). If the judge is unwilling or unable to make full disclosure, remittal is not available.
4 This disqualification standard is different from the standard that applies when a judge’s relative within the fourth degree is employed in a high-ranking supervisory position in a public law office, and individuals subject to the judge’s relative’s supervision appear before the judge (see e.g. Opinions 10-05 [judge’s spouse is the County Attorney]; 08-212 [judge’s cousin is the Corporation Counsel]; 07-216 [judge’s sibling is the District Attorney]).