Opinion 16-144

October 20, 2016

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 law clerk becomes the District Attorney is disqualified, subject to remittal where permitted, from presiding in cases involving the DA’s office for one year, even if the judge is presiding in veterans court. (2) To the extent lawful, practical and appropriate, it is ethically permissible to streamline the remittal process by incorporating the requisite disclosures and consents into the parties’ and their counsel’s written agreement to transfer the case to veterans court.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 16-130; 16-67; 15-58; 11-64; 07-78/07-121; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge’s law clerk is currently seeking election as District Attorney. Since the judge will be disqualified from all matters involving the DA’s office for one year if the law clerk is elected, an administrative or supervising judge asks if the judge may nonetheless preside over veterans treatment court matters during that year.¹ According to the Unified Court System’s website, veterans court is a specialized problem-solving court, similar to drug treatment and mental health courts. Veterans court uses a team-centered approach to address the problems of military-veteran defendants suffering from addiction, mental illness and/or co-occurring disorders. The judge explains that veterans court proceedings take place post-plea and are generally non-adversarial. Another superior court judge would take the plea, and the matter would be transferred to veterans court on consent of the District Attorney’s office and the defense. The veterans court judge would monitor the participant’s progress. If the participant fails to graduate, the case would leave veterans court and be referred back to the judge who took the plea initially.

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]). Where, as here, the facts do not implicate 22 NYCRR 100.3(E)(1)(a)-(f) or Judiciary Law § 14, disqualification is nonetheless required if the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not objectively mandated under these standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403,505 [1987]). Of course, the judge must not preside if he/she questions his/her own impartiality (see Opinion 11-64).

         When a judge’s court attorney is elected the DA, the judge is disqualified, subject to remittal, from all matters involving the DA’s office for one year (see Opinion 15-58 [noting the DA “is the attorney of record for all cases filed by his/her office, and all of the assistant district attorneys are answerable to him/her”]).

         In effect, the present inquiry asks whether there is a different result if a judge presides over criminal cases in a treatment court. Although the treatment courts are substantially less adversarial than traditional courts, a judge who presides in a treatment court “still must objectively and impartially evaluate a participant’s progress in [that c]ourt” (see Opinion 07-78/07-121). Thus, because the local DA’s office is involved in these matters, in the Committee’s view, the judge must disqualify him/herself from veterans court matters for the one-year period. This disqualification is subject to remittal pursuant to Section 100.3(F) and Opinion 16-130 (citations omitted):

As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. 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 disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

Moreover, to the extent lawful, practical and appropriate, a judge may streamline or expedite the remittal process by incorporating the requisite disclosures and consents (including full disclosure of his/her relationship with the DA, and the parties’ and their counsel’s agreement that he/she may preside) into the written agreement to transfer their case to veterans court (cf. Opinion 16-67 [noting elements that must be satisfied in an expedited remittal process]).

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¹ “Through the use of peer mentors, judicial monitoring, coordinated services and enhanced communication, the Veterans Court/Track seeks to provide veterans with immediate and intensive intervention so that they can successfully reintegrate into civilian life” (UCS, Veterans Courts: Overview <visited 12/15/2016>).