Opinion 16-162

December 8, 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:         A County Court judge whose full-time court attorney is now a town justice within the same county may continue to preside over cases originating in or appealed from the Town Court, provided his/her court attorney is insulated from those cases and the insulation is disclosed on the record to all parties and their counsel. Because this disclosure is mandated in lieu of disqualification, if a party is appearing without counsel, the judge must disqualify him/herself.

Rules:          22 NYCRR 50.3; 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 10-98; 08-172; 07-194; 99-133; 95-111; 92-115; 88-67.

Opinion: 

         A County judge’s law clerk is a new part-time justice in a multiple-justice Town Court within the same county. The County Court judge asks if he/she may preside in cases originating in the Town Court and appeals therefrom. He/she also asks if “insulation” of the law clerk from all work on those cases and a record disclosure to all parties are mandatory.

         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]). Also, a judge must not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]); and must disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         The Committee has said a County Court judge’s full-time court attorney or law clerk may concurrently serve as a part-time judge within the same county (see Opinions 10-98; 07-194; 99-133).¹ However, the part-time judge, in his/her capacity as a non-judicial superior court employee, must not participate in appeals from his/her own judicial decisions or judgments (see Opinion 92-115) or in any other appeals from the court in which he/she serves as a judge (see Opinions 08-172 [town justice is also a court clerk in superior court]; 07-194 [part-time city court judge is also full-time court attorney to superior court judge]; 99-133 [town justice is also full-time law clerk to superior court judge]; 95-111 [town justice is also legal secretary to superior court judge]; 92-115 [part-time city court judge is also part-time law clerk to superior court judge]).

         In Opinions 08-172 and 07-194, the Committee advised that a County Court judge may preside in cases that are appealed from any judge of the court where his/her court attorney or court clerk presides as a part-time judge, provided the judge insulates the court attorney or court clerk from the matter appealed to County Court and discloses the insulation on the record (see Opinions 08-172; 07-194 [modifying prior opinions]).

         However, the Committee also advised that the “part-time town justice need not be insulated from involvement in a case that was divested to the superior court after he/she exercised preliminary jurisdiction” (Opinion 08-172; accord Opinion 07-194). On further consideration, the Committee believes this distinction is inappropriate for two reasons. First, it may be difficult to remember and follow. It will be easier for a superior court judge to insulate his/her court attorney from all matters that arrive from the lower court in which he/she serves, even when the superior court judge “does not review the prior proceedings in the case, but instead continues its adjudication” (Opinion 08-172). Second, even when a superior court judge merely assumes jurisdiction of a case after arraignment and/or a preliminary hearing, he/she is likely to review the entire case file and take any steps he/she believes are legally necessary as a judge. While this differs from reviewing the case on appeal, the Committee believes litigants and the general public will appreciate knowing the superior court judge is reaching his/her own, independent conclusions about the case file, without the assistance of the justice who presided over the arraignment and preliminary hearing (or the latter’s co-justice).

         Thus, the Committee concludes disqualification is not required in matters originating in or appealed from a city, town or village court merely because the superior court judge’s court attorney had presided as the part-time city, town, or village judge. Instead, provided the superior court judge believes he/she can be fair and impartial, and he/she insulates his/her law clerk from all matters arising from that court, the superior court judge may preside. The judge must also disclose the insulation and the basis for it on the record to all parties and their counsel. Because disclosure is mandated here in lieu of outright disqualification, the judge must recuse if any party appears without counsel.

         Opinions 10-98, 08-172, 07-194, 99-133, 95-111, 92-115, and 88-67 are modified to the extent inconsistent with this opinion.²

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         ¹ As a reminder, Unified Court System employees who wish to seek a part-time judgeship or other paid employment with a department or agency of New York State or its subdivisions may contact the Nonjudicial Ethics Helpline (1-888-28-ETHIC) for guidance on the dual employment rule (see 22 NYCRR 50.3).

         ² To the extent that Opinions 10-98, 99-133, 95-111, and 92-115 require disqualification of the County Court judge and/or provide that appeals arising out of his/her law clerk’s judicial decisions “should, if practicable, be referred” to another County Court judge, they are overruled; insulation of the law clerk is sufficient. Opinions 08-172 and 07-194 are modified to the extent they do not require insulation of a County Court judge’s court clerk or court attorney from matters in which he/she or another judge of that court exercised preliminary jurisdiction. Opinion 88-67 is modified to the extent it requires all Family Court matters which originated in the town court where a Family Court judge’s law clerk presides to be “referred to a different Family Court Judge” (Opinion 88-67); instead, the Family Court judge may preside, provided he/she insulates the law clerk from such matters.