Opinion 17-08

January 26, 2017

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 part-time judge whose former private employer has become the District Attorney has the following obligations when the District Attorney or his/her staff appears, during the two-year period following the termination of their former employment relationship:

(1) In the first year, the judge is disqualified, subject to remittal, from presiding in any case involving the District Attorney’s office;

(2) In the second year, disclosure is mandated in lieu of disqualification, and the judge may exercise discretion in determining any motion for recusal.

During the entire two-year period, the judge may not preside in a case involving the District Attorney’s office if a party is appearing without counsel.

Rules:     Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 15-58; 14-61; 12-05; 09-138; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         A part-time judge was formerly employed as a paralegal in an attorney’s private law office. The employment relationship between them ended less than two years ago. The judge’s former attorney/employer is now the District Attorney. The judge asks if he/she may preside in matters involving the District Attorney’s office, including assistant district attorneys who report to that District Attorney.

         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]). A judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must therefore disqualify him/herself in circumstances required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]) and in any other case where his/her impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         A judge “has certain obligations in the first two years after the end of a former employment relationship, when an attorney who was formerly the judge’s supervisor appears before the judge” (Opinion 14-61). Specifically, during the first year after the supervisory relationship ended, the judge is disqualified from presiding over matters where his/her former supervisor appears, subject to remittal (see id.; Opinion 12-05). Remittal requires full disclosure on the record, and is only available if all parties who have appeared and not defaulted are represented by counsel (see Opinion 14-61).¹

         During the second year, the judge must disclose the former employment relationship (see Opinions 14-61; 12-05). Because disclosure is required during this period in lieu of outright disqualification, if any party is appearing without counsel, the judge must simply disqualify him/herself. If, after full disclosure, a party objects to the judge presiding, then the judge may, after considering all relevant factors, exercise his/her discretion in determining whether to disqualify him/herself (see Opinions 14-61; 12-05; see also People v Moreno, 70 NY2d 403 [1987]). As always, if the judge doubts his/her impartiality, the judge must not preside.

         In the context of a prior employment relationship, the Committee has also advised that if a judge is disqualified from presiding over matters involving the District Attorney, then the judge must disqualify him/herself from all matters in which the District Attorney’s office appears, observing that “the District Attorney 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 (see Opinion 15-58 [judge’s former personal appointee became the local District Attorney]).

         Here, because this judge’s former employer has become the District Attorney, he/she has the following obligations when the District Attorney’s office appears, during the two-year period following the termination of their former employment relationship:

(1) In the first year, the judge is disqualified, subject to remittal, from presiding in any case involving the District Attorney’s office;

(2) In the second year, disclosure is mandated in lieu of disqualification, and the judge may exercise discretion in determining any motion for recusal.

During the entire two-year period, the judge may not preside in a case involving the District Attorney’s office if a party is appearing without counsel.

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         ¹ The remittal procedure involves three steps: “First, the judge must fully disclose the basis for disqualification on the record . . . . Second, following such disclosure, and 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 his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion 09-138; see 22 NYCRR 100.3[F]).