Opinion 15-82

April 23, 2015

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 all parties were represented by counsel when they and their attorneys agreed the judge should not be disqualified, the remittal remains effective even if a party afterward discharges his/her attorney.

Rules:          22 NYCRR pt 100, Preamble; 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 15-06; 13-64.

Opinion:

         The inquiring judge disqualified him/herself in a particular case, and the parties and their counsel remitted disqualification as permitted by the Rules Governing Judicial Conduct and prior opinions. Recently, one party discharged his/her attorney and is now proceeding pro se. The judge asks if the remittal remains effective, even though the party is now self- represented.

         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]).

         Where a judge must disqualify him/herself in a case where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), disqualification may be remittal under Section 100.3(F) except if prohibited by Rule or the Committee’s opinions (see Opinion 13-64). Remittal involves 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 the judge may preside. Third, the judge must independently conclude he/she can be impartial and be willing to preside 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 in the record of the proceeding.

(Opinion 15-06; 22 NYCRR 100.3[F]). Since the Rules call for “the agreement of the parties who have appeared and not defaulted and their lawyers” in order to effectuate remittal (22 NYCRR 100.3[F]), the Committee consistently advises that remittal is unavailable if a party is appears pro se (see e.g. Opinions 15-06; 13-64).

         In the Committee’s view, the ethical propriety of a proffered remittal must be assessed at the time the parties, their counsel, and the judge undertake the three-step remittal process described in Opinion 15-06 and Section 100.3(F). Once the judge accepts remittal and incorporates the parties’ and their attorneys’ agreement in the record of the case, he/she may preside. The fact that a party afterward discharges his/her attorney and proceeds without legal representation cannot cast any reasonable doubt on the propriety of the previously granted remittal. Indeed, a judge who follows the three steps outlined above necessarily creates a clear formal record that (1) he/she made full disclosure, and (2) the parties and their attorneys thereafter expressly agreed the judge could preside. From a practical perspective, the Committee also notes it would severely compromise the efficient administration of justice if a litigant could unilaterally remove a judge from a proceeding simply by discharging his/her own attorney (cf. 22 NYCRR pt 100, Preamble [“The rules governing judicial conduct are rules of reason.”]).

         Here, all parties had counsel when they agreed the judge could preside. Therefore, assuming the judge accepted remittal of disqualification in compliance with Opinion 15-06 and Section 100.3(F), the remittal remains ethically permissible even though a party afterward discharged his/her attorney.