Opinion 14-61

June 12, 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 town or village judge who until recently was employed as a secretary in the local prosecutor’s office: (a) must not preside in any case that was pending in the local prosecutor’s office during the period of his/her employment and (b) is disqualified, subject to remittal, when his/her former supervisor appears, for one year after the employment relationship ends. During this one-year period, the judge may not preside over matters in which his/her former employer appears if any party to the matter is proceeding without legal representation.

(2) A town or village judge who was employed as a secretary in the District Attorney’s office more than four years ago must not preside in any case that was pending in that office during the period of the judge’s employment but, otherwise, has no obligation to disclose or recuse as a result of the former employment.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 12-05; Joint Opinion 11-18/11-42; Opinions 11-20; 07-23; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring town or village judge states that he/she was formerly employed as a secretary for prosecutors both at the county level and in the municipality in which he/she now presides. The judge notes that his/her employment with the county district attorney’s office ended more than four years ago, while his/her employment with the local prosecutor’s office ended within the past year. The judge asks about his/her ethical obligations as a result of this prior employment when the individual attorneys for whom he/she previously worked or their colleagues or successors, in their respective offices, appear before the judge.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). In particular, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee believes that, under the circumstances presented, there is no need for disqualification in all instances when the judge’s former employers appear, provided the judge believes he/she can be fair and impartial. However, as discussed hereafter, the judge does have certain obligations regarding specific attorneys who formerly supervised the judge and in specific matters pending during the judge’s former employment.

Obligations with Respect to Former Supervisors

         In Opinion 12-05, the Committee advised that a judge has certain obligations in the first two years after the end of a former employment relationship, when an attorney who was formerly the judge’s supervisor appears before the judge (id):

[D]uring the first year after the supervisory relationship between the former supervisor and the presiding former supervisee ended, the presiding former supervisee is disqualified subject to remittal when the former supervisor appears (see 22 NYCRR 100.3[F]). If the former supervisee believes he/she can be fair and impartial as the presiding judge, and is also willing to preside, and if all parties are represented by counsel, the former supervisee may disclose the reason for his/her disqualification so that the parties and their counsel may consider whether to remit his/her disqualification (see 22 NYCRR 100.3[F]; Joint Opinion 11-18/11-42).

         In the first year, remittal is only available if all parties are represented by counsel, and only after full disclosure of “the reason for the disqualification – including a description of their present (if any) and former relationship” (id.).

         Subsequently, the Committee advised (id.):

During the second year, the former supervisee is no longer required to disqualify him/herself because of the former supervisor/supervisee relationship, but must disclose it; that is, the former supervisee must fully disclose the nature of his/her prior relationship with the former supervisor and, if a party objects to the former supervisee presiding, the former supervisee may exercise his/her discretion in determining whether to disqualify him/herself after considering all relevant factors (see Opinion 11-20; see also People v Moreno, 70 NY2d 403 [1987]). If he/she decides to preside, the former supervisee should put his/her reasons for doing so on the record (see Opinion 11-20).

         Again, in the second year, the judge may not preside if any party appears without legal representation or if the judge is unwilling to fully disclose the relationship (see id.).

         Finally, after the two-year period ends, the Committee advised that disqualification and disclosure are entirely within the judge's discretion as long as the judge concludes that he/she can be fair and impartial (see id.).

         The Committee believes the graduated two-year approach set forth in Opinion 12-05 is unnecessary in this instance, where the inquiring judge was formerly the secretary to certain prosecutors who may now appear before the judge, either as private attorneys or as prosecutors. The public may reasonably expect even a junior prosecutor, by training and experience, to become intimately familiar with the law and facts of specific investigations and prosecutions, as necessary to provide legal advice as an attorney. A secretary’s role, while often crucial to efficient operations of a law office, does not require the same legal training or the same in-depth knowledge of the details of specific cases. These differences lead the Committee to conclude that a judge who was formerly the secretary to certain prosecutors need not undertake the additional year of disclosure, which is required for a judge who was formerly an attorney subject to the prosecutor’s supervision.

         The Committee notes that the obligation to disqualify is personal to the attorney who supervised the judge. For example, if Attorney A was serving as the appointed town or village prosecutor while the judge was employed as secretary in that office and Attorney B has now been appointed as town or village prosecutor, the judge’s obligations with respect to his/her former supervisor are not “transferred” to the current office holder; they remain personal to Attorney A.

Obligations with Respect to Specific Matters

         The Committee has advised that a judge who formerly was an assistant district attorney, law clerk, and an attorney for certain New York State Executive Branch agencies “is disqualified in any case in which he/she was directly involved” in his/her prior governmental employment, in either a personal or supervisory capacity (Opinion 07-23). Moreover, where the nature of the judge’s former duties made it “highly unlikely that the judge could clearly identify” all such matters in which the judge personally participated at the public law office, the judge should not preside over any cases that were pending in that office during the period of the judge’s employment (Opinion 07-23, quoting Opinion 99-11 [Vol. XVII]).

         Here, although the judge did not have a high-level supervisory position, the Committee notes that the judge’s position as secretary, particularly in a relatively small public law office, makes it very likely that the judge was personally involved in virtually all the matters pending during his/her employment.

         Accordingly, the judge should disqualify him/herself from matters pending in the office of the town or village prosecutor during his/her employment and, likewise, from matters pending in the DA’s office during his/her employment in that office.

Conclusion

         In sum, as to the inquiring judge’s recent employment in the office of the town or village prosecutor: (a) the inquiring judge must not preside in any case pending in that office during the judge’s employment; and (b) the inquiring judge is disqualified, subject to remittal, when his/her former supervisor appears, for one year after the employment relationship ends. During this one-year period, the judge may not preside when his/her former employer appears if any party to the matter is self-represented.

         With respect to the inquiring judge’s former employment in the office of the District Attorney more than four years ago: the inquiring judge must not preside in any case that was pending in that office during the period of the judge’s employment but, otherwise, has no obligation to disclose or recuse as a result of the former employment as long as he/she can be fair and impartial.