Opinion 17-119

October 6, 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).

Dear :

         This responds to your inquiry (17-119) asking whether you may continue to preside in Department of Social Services matters if your first degree relative is hired as a paralegal or legal clerk by the County Attorney’s office. You indicate that you preside over many support matters where the County Attorney appears for the Department of Social Services. However, most litigants appear pro se.

         The Committee has previously advised that where, as here, a judge’s first-degree non-attorney relative is employed in the public sector in a non-supervisory capacity, the judge may generally preside over cases in which the first-degree relative’s employer appears, without the need for disclosure or disqualification, provided the judge’s relative has no personal involvement in the matter. Accordingly, you need not disclose your relative’s employment in cases where the County Attorney appears or in any cases involving matters of child support, provided your relative is not personally involved in the matter.

         However, in matters where your relative is personally involved, you must disqualify yourself. Disqualification on this ground is subject to remittal, provided no party appears without counsel and the judge is willing and able to fully disclose the basis for disqualification on the record.¹ In the event your relative assumes supervisory responsibilities, you may contact us again for further advice.

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¹ Where permitted, 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. Third, the judge must independently conclude he/she can be impartial and be willing to preside 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 in the record.    Enclosed, for your convenience, are Opinions 16-28; 15-164; and 15-06.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice

                                       Appellate Div., First Dep’t (Retired)

                                       Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Family Court Judge

                                       Acting Justice, Supreme Court

                                       Committee Co-Chair

Encls.