Opinion 16-66

May 5, 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:         Under the circumstances presented, when an attorney appearing before the judge had previously represented the judge’s grandchild’s parent and now has an outstanding judgment for unpaid legal fees, (1) the judge is disqualified, subject to remittal, until the judgment is satisfied or vacated; (2) for two years thereafter, the judge must disclose the attorney’s former representation; and (3) thereafter, the judge has no further obligation, provided he/she can be fair and impartial.

Rules:          Judiciary Law §14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-51; 13-132; 13-64; 12-111; 11-95; 09-138; 09-55; 07-128; 06-111.

Opinion:

         For some time, the inquiring judge has disqualified him/herself from hearing cases involving an attorney who previously represented the judge’s grandchild’s parent.¹ The attorney has notified the judge that two years have passed since the representation concluded. However, the judge has also learned that the attorney and his/her former client went to arbitration over legal fees, and the attorney now has an, as yet unpaid, judgment against the judge’s grandchild’s parent. The judge asks if he/she must disclose and/or disqualify from the attorney’s cases, in light of the unresolved judgment.

         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]). A judge also must disqualify him/herself in specifically enumerated circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14) and in any other proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]).

         This inquiry presents a novel twist, because the judge and his/her spouse are not, strictly speaking, related to their first-degree relative’s former partner by blood or marriage (see generally 22 NYCRR 100.0[C]). Nonetheless, the individual is the parent of the judge’s grandchild, and the judge has chosen to maintain a relationship with him/her for that reason. On these specific facts, the Committee believes it appropriate to treat the parent of the judge’s grandchild as a significant family connection akin to a first- or second-degree relative (see Opinion 06-111 [relationships within the second degree typically “denot[e] a more intimate and significant family connection”]).²

           The Committee has advised that a judge is disqualified, subject to remittal, in matters involving an attorney who is representing the judge’s first-degree relative (see Opinions 12-111; 11-95; 09-55; 07-128). The obligation continues until the representation is completely concluded and all fees are paid (see Opinions 13-132; 12-111).

          Once the representation completely ends and all fees are paid (see Opinions 13-132; 12-111), disqualification is no longer required, provided the judge can be fair and impartial (see Opinions 14-51; 12-111; 09-55). In lieu of disqualification, however, the judge must fully disclose to the parties and their attorneys the former representation for two years (see id.). If, after disclosure, a party requests recusal, the judge should exercise his/her discretion in determining whether to grant or deny the request (see id.). Because disclosure is mandatory during this period, if any party appears without an attorney or the judge is unwilling or unable to make full disclosure, the judge must simply recuse (see Opinions 14-51; 12-111).

         After this two-year period, the judge has no further obligation to disclose or recuse when the attorney appears, provided the judge can be fair and impartial.

         Here, because there are still unpaid or disputed legal fees, the relationship between the attorney and his/her former client has not yet completely terminated, and the judge’s impartiality still may reasonably be questioned when the attorney appears. Thus, the judge is disqualified, subject to remittal, until the judgment is satisfied or vacated and the legal fee dispute is resolved (see Opinions 13-132; 12-111).³ For a two-year period thereafter, full disclosure of the former representation is required (see id.). Because disclosure is required in lieu of disqualification, the judge is disqualified if a party is appearing without counsel or if the judge is unwilling or unable to disclose. After the two-year disclosure period, neither disclosure nor disqualification is mandated, but the judge may, in his/her sole discretion, choose to disclose or disqualify based on the relevant circumstances (see Opinions 12-111; 07-128).

         Of course, if the judge questions his/her own ability to be impartial in a particular case, then the judge simply must not preside (see Opinion 11-95).

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            ¹ The judge’s grandchild’s parent is a former partner of the judge’s first-degree relative; the judge has maintained a cordial relationship with this individual.

            ² The Committee need not resolve the issue definitively for purposes of this opinion.

            ³ As always, remittal is unavailable if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure. Where permitted, remittal is a three-step process: (1) the judge must fully disclose the basis for disqualification on the record; (2) the parties who have appeared and not defaulted, and their counsel, must all agree the judge should not be disqualified; and (3) the judge must independently conclude he/she will be impartial and is willing to participate (see 22 NYCRR 100.3[F]; Opinions 13-64; 09-138). Once these steps are satisfied, the judge may continue to preside after he/she incorporates the agreement in the record of the proceeding (see id.).