Opinion 16-57

May 5, 2016

Digest:         A judge is disqualified, subject to remittal, from matters involving an attorney who has filed employment discrimination charges against the judge’s second-degree relative. The judge may preside in matters involving other attorneys from the same office, provided he/she can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(D); 100.3(B)(4)-(5); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 11-64; 11-34; 11-26; 10-168; 07-78/07-121; 06-111; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge’s relative, who is within the second degree of relationship,¹ formerly headed a government law office. One of the relative’s former subordinates has filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and received authorization to sue in state or federal court.² The judge is not comfortable presiding over cases involving the former subordinate in light of these allegations, and has therefore disqualified him/herself from the attorney’s cases. The judge believes that certain other former subordinates, including one or more non-attorney office staff, may also file EEOC charges and/or lawsuits. The judge does not know the identity of these individuals and has asked his/her relative not to reveal any such information. The judge now requests guidance on his/her ethical obligations when attorneys from the government law office appear.

         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, as here, disqualification is not mandated under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14, the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         In the Committee’s view, the judge need not disclose or recuse in all matters involving the government law office. It simply does not appear on these facts that the judge’s impartiality could “reasonably be questioned” with regard to the entire office (see generally Opinions 16-26; 11-64; 22 NYCRR 100.3[E][1]).³

         With respect to the former subordinate who has already filed with the EEOC, and is expected to file a civil lawsuit shortly, the judge’s impartiality can reasonably be questioned in matters involving that attorney (see 22 NYCRR 100.3[E][1]; cf. Opinion 10-168 [a judge whose spouse files a notice of claim against a municipality must exercise disqualification from the municipality’s cases “from the date of filing until the judge’s spouse’s matter against the municipality is concluded”]). The judge must therefore disqualify him/herself from cases in which this attorney appears. Due to the volatile nature of the claims asserted against the judge’s relative, the disqualification should continue for a period of two years following the conclusion of the legal proceedings.⁴

         With respect to other former subordinates who may potentially assert claims against the judge’s relative, the judge has no obligation to investigate or attempt to discern their identities. Nor need the judge take any other action with respect to any such potential claimants, as long as the judge can be fair and impartial when they appear before the judge (cf. Opinion 10-168 [a judge whose spouse has retained counsel and is considering making a claim against a municipality need not disqualify from the municipality’s cases “unless and until his/her spouse files the notice of claim”]). Once a particular individual files his/her own discrimination charges with the EEOC or otherwise commences litigation against the judge’s relative, however, the judge must disqualify him/herself from that individual’s cases (cf. Opinions 11-34 [recusal obligations begin “when the judge’s relative files a notice of claim”]; 10-168 [recusal obligations begin “from the date of filing” the notice of claim]). Again, disqualification is required until two years after the legal proceedings have concluded.

         All these general principles are subject to one important caveat: If the judge doubts his/her ability to be fair and impartial with respect to a particular individual, the judge may not preside in matters involving that individual (see Opinions 11-64; 07-78/07-121). This requirement could potentially extend the judge’s disqualification beyond the two-year mark in some instances, or could even cause the judge to exercise disqualification for certain individuals who have not filed any formal charges against the judge’s relative. However, this determination is solely confined to the judge’s own conscience (cf. Moreno, 70 NY2d at 405).

         Finally, because this government law office regularly appears in the judge’s court, the judge may wish to discourage his/her relative from discussing the discrimination charges with him/her, in order to minimize otherwise unnecessary disqualifications.

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         ¹ Relatives within the second degree of relationship include a spouse as well as children, step-children, parents, step-parents, grand-children, step-grandchildren, siblings, step-siblings, grandparents, and step-grandparents. In analyzing disqualification requirements, the Committee has recognized the second degree of consanguinity as a relatively “intimate and significant family connection” (Opinion 06-111).

         ² The EEOC website explains: “If you plan to file a lawsuit alleging discrimination on the basis of race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, genetic information, or retaliation, you first have to file a charge with one of our field offices... We will give you what is called a ‘Notice-of-Right-to-Sue’ [which] gives you permission to file a lawsuit in a court of law. Once you receive a Notice-of-Right-to-Sue, you must file your lawsuit within 90 days.”

         ³ The judge may contact the Committee for further guidance following any new developments, for example, if a large number of the former subordinates become personally involved in the discrimination claims as claimants and/or witnesses.

         ⁴ A judge may feel very strongly about assertions that his/her relative has engaged in invidious discrimination, in light of the judge’s own obligations to avoid and prohibit such conduct in his/her judicial capacity (see 22 NYCRR 100.3[B][4]-[5]) and to decline membership in discriminatory organizations (see 22 NYCRR 100.2[D]).