Opinion 16-88

June 16, 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 quasi-judicial official who is suing the county is disqualified, subject to remittal, when attorneys who are personally involved in defending the county appear before him/her in their private or official capacities. (2) For two years after the lawsuit concludes, disclosure is mandatory when these attorneys appear. (3) Neither disclosure nor recusal is required when other assistant county attorneys, or other attorneys from county-level government law offices appear, provided they are not personally involved in his/her lawsuit.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); 100.6(A); Opinions 16-67; 15-172; 15-157; 15-69; 15-58; 14-172; 14-51; 14-11; 13-24; 12-07; 10-69; 09-47(B); 07-216.

Opinion: 

         A full-time quasi-judicial official, in his/her private capacity, plans to sue the local county government for alleged property damage. The County Attorney and certain part-time assistant county attorneys will defend the county. Although these attorneys do not appear before the quasi-judicial official in their official capacities, some appear as private practitioners. Additionally, attorneys from other county offices, such as the social services department and the local district attorney’s office, appear before him/her in their official capacities. The inquirer asks whether he/she may preside in matters involving the County Attorney, the part-time assistant county attorneys, and attorneys from other county-level government law offices, once he/she files a claim.

         Quasi-judicial officials, such as support magistrates, judicial hearing officers and court attorney referees, must comply with the Rules Governing Judicial Conduct while performing their judicial duties and “so far as practical and appropriate” use the rules to guide their respective conduct (see 22 NYCRR 100.6[A]; Opinion 15-157; 15-69). Therefore, like judges, quasi-judicial officials must 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]). In that regard, a quasi-judicial official must disqualify him/herself when his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including in specific circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Unless otherwise provided, disqualification is subject to remittal (22 NYCRR 100.3[F]).¹

         In the litigation context, the Committee has advised that a judge who is represented by the Attorney General’s office in federal court need not disqualify him/herself, or disclose the relationship, in unrelated cases when other assistant attorney generals appear before him/her (see Opinion 10-69). Indeed, “as long as the Attorney General is not directly or personally involved in the unrelated case and the assistant attorney general who is appearing in the judge’s court is not the same assistant attorney general who is currently representing the judge in federal court,” the judge’s impartiality cannot reasonably be questioned (id.). Similarly, a judge who has sued the Public Defender “in his/her individual and official capacities” is disqualified, subject to remittal, in matters where the Public Defender personally appears, but may preside in matters where the assistant public defenders appear, provided the judge believes he/she can be fair and impartial (Opinion 14-11). A judge is likewise disqualified, subject to remittal, for all attorneys who are personally involved in prosecuting his/her second-degree relative, but may preside over matters involving other prosecutors from the same office, including subordinates (see e.g. Opinion 14-51 [judge’s second-degree relative was prosecuted by a Supervising ADA and defended by the Public Defender]).²

         Here, too, where the County Attorney and any assistant county attorney are directly involved in the quasi-judicial official’s pending litigation, the quasi-judicial official must disqualify him/herself when those specific attorneys appear before him/her in any capacity, subject to remittal. Once the lawsuit concludes, disclosure is required for two years thereafter (see Opinion 14-51). During this two-year period, because disclosure is mandated in lieu of disqualification, if a party appears without representation or if the judge is unwilling or unable to make full disclosure, the judge must simply disqualify him/herself (see id.)

         However, the quasi-judicial official has no duty when other part-time assistant county attorneys appear (i.e. those who are not personally involved in defending the lawsuit). Likewise, he/she may preside when attorneys from the department of social services or the district attorney’s office appear if those attorneys are not involved in his/her lawsuit. Even if those attorneys appear during the pending lawsuit, the judge need not disclose the lawsuit.

         Finally, the Committee notes this inquiry is distinguishable from prior ones involving judges “named individually as a defendant in a lawsuit, but the causes of action are directed at the judge’s institutional role” (Opinions 12-07; 09-47[B]). Generally, a judge’s impartiality cannot reasonably be questioned if the cause of action is aimed at the judge in his/her judicial capacity, as the judge has no personal interest in the litigation, and as such, the judge need not disqualify him/herself in an unrelated case where the attorney who commenced the lawsuit appears, unless the judge cannot be fair and impartial (see id.). In the instant inquiry, since the quasi-judicial official’s interest in the pending litigation is personal, rather than as an advocate or in his/her official capacity, he/she must also disqualify him/herself, subject to remittal, for the duration of the pending litigation, when any attorney who is personally involved in defending the county appears before him/her on unrelated cases as government or private attorney.

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         ¹ here available, remittal is 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; and third, the judge must independently conclude that he/she can be impartial and is willing to participate in the matter. 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 (see Opinion 13-24). If any party appears without counsel, remittal is not available (see id.).

         ² A different rule applies in the employment context, such when the judge or his/her law clerk formerly headed a government law office (see e.g. Opinions 15-172; 14-172), when the judge’s former law clerk becomes the head of an agency (see e.g. Opinion 15-58), or when a relative within the second degree of relationship heads an agency (see e.g. Opinions 16-67; 07-216). In these instances, there is an inference that the agency head is directly or indirectly involved in all matters during his/her tenure, particularly where he/she was “the attorney of record who bore ultimate responsibility for these cases” (Opinion 15-172).