Opinion 14-78

June 12, 2014

Please Note: As of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, i.e., where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]).

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:         If a Surrogate determines that an interested party is legally in default, remittal of disqualification may be achieved without informing the defaulting party of the basis of the disqualification, and without obtaining the consent of the defaulting party.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 101.1; Opinions 13-64; 11-43; 09-138.

Opinion:

         A Surrogate’s Court judge has determined that he/she is disqualified subject to remittal in a particular case and requests clarification of the remittal process. In particular, the judge asks whether remittal is available and how to accomplish it when one interested party who previously appeared in the proceeding “has subsequently informed the court that he/she will not be filing a responsive pleading (an Answer or Objections) to the petition,” and other interested parties “have not appeared at all in the proceeding.” The inquiring judge advises that “[u]nder CPLR 3215 and various case law, the failure of a party who appears but does not file a pleading is a default.”

         A judge must avoid impropriety and its appearance in all the judge’s activities (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]).

         Although a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), such disqualification is subject to remittal pursuant to Section 100.3(F) except where prohibited by the Rules Governing Judicial Conduct (“Rules”) or the Committee’s prior opinions. As the Committee explained in Opinion 13-64:

Rule 100.3(F) forbids remittal of disqualification in four scenarios. That is, remittal is prohibited if the judge: (1) has a personal bias or prejudice concerning a party; (2) knows that he/she served as a lawyer in the matter in controversy; (3) knows that he/she served as a material witness concerning the matter in controversy; or (4) knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person, is a party to the proceeding. Because remittal is not available in these circumstances, the judge must disqualify him/herself from the proceeding.

In addition, the Committee has advised that remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record.

(Opinion 13-64 [citations omitted]). Where permitted, the Committee has advised that 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]).

         The present inquiry focuses on the second step of the remittal process. In effect, the inquiring judge is asking whose consent is necessary to achieve remittal of disqualification in two specific scenarios that arise frequently in the Surrogate’s Court context. The Committee notes, preliminarily, that it has previously advised that “an interested person who has waived and consented to the relief requested in a probate or estate administration proceeding has technically ‘appeared and not defaulted’ for the purposes of Rule 100.3(F), but has not, without more, remitted disqualification of the judge” (Opinion 11-43 n.1).

         Here, however, the inquiring Surrogate asks about the circumstance where some interested parties filed an initial notice of appearance, but then subsequently declined to file any pleadings, and others apparently ignored the notices they received and never appeared at all. In the Committee’s view, Section 100.3(F) requires consent only from “the parties who have appeared and not defaulted and their lawyers” (22 NYCRR 100.3[F] [emphasis added]).

         Thus, if the inquiring Surrogate determines that an interested party is legally in default -– whether because the interested party has failed to appear at all, or because the interested party appeared but subsequently failed to file a pleading, or otherwise -– the Surrogate is not ethically required to inform the defaulting party of the basis of the disqualification, and is not ethically required to obtain the consent of the defaulting party.

         However, the Committee notes it cannot comment on any legal questions, including whether and when an interested party is legally in default (see 22 NYCRR 101.1).