Opinion 17-120

January 24, 2018

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 judge whose court clerk sometimes serves as a foster parent by department of social services appointment generally may preside in cases involving the potential removal of a child.

(2) The judge need not insulate the court clerk from such cases unless and until the judge becomes aware the court clerk is personally involved or is likely to have an interest in a specific disposition.

(3) Where insulation is required, the judge must also make full disclosure. If any party who has appeared and not defaulted is appearing without counsel at the time of such disclosure, the judge must disqualify him/herself. Otherwise, the judge retains full discretion to preside after full disclosure, even if there is an objection.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 16-162; 15-39; 15-06; 14-171; 14-169; 10-43/44; 08-172; 00-123; 97-112; 96-85.

Opinion:

         A judge whose part clerk and deputy court clerk is a foster parent asks if he/she may preside over proceedings which may result in removing a child from a home and referring him/her to the department of social services (DSS) for foster care placement. The judge explains that once a child is placed in foster care, the foster parents are formally joined as parties in a permanency hearing and any associated dispositional hearing. The foster parents are generally notified, but not formally joined as parties, in proceedings such as violation petitions, fact-finding hearings on the underlying abuse or neglect petition, or a standalone dispositional hearing. While most parties are represented by counsel in such matters, the foster parents typically appear without counsel.

         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 himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

          We have generally advised that when the judge’s court clerk has an interest in a proceeding, as long as the judge can be fair and impartial, the judge is not disqualified; but, rather, the clerk may be insulated from participation in the proceeding (see Opinions 14-171; 10-43/44; 08-172; 00-123; 97-112; 96-85).

         Here, neither the judge nor the clerk will likely become aware of the clerk’s possible interest as a potential foster parent until, during the course of a proceeding directly or indirectly involving a child, the removal of a child becomes a likely disposition. Even then, the clerk’s interest is only speculative or potential because DSS, rather than the judge, chooses the foster parents after referral to DSS by the judge.

         We conclude he/she need not take any action based on the clerk’s possible role as a foster parent in a case, unless and until the judge is aware the court clerk is personally involved or is likely to have an interest in the disposition of that specific proceeding (cf. Opinions 15-39; 15-06). At that point, he/she must insulate the clerk from the case and disclose the reason for doing so.

         Since disclosure of insulation is mandatory on these facts, if any party appears without counsel, the judge must simply disqualify him/herself (see e.g. Opinions 16-162; 14-169 [emphasizing that where a judge determines a party is legally in default, the judge need not disclose such insulation to the defaulting party and need not attempt to discern whether the defaulting party is represented by counsel]). Otherwise, the judge may preside, after full disclosure, and despite an objection.

         If the case remains in the same courthouse where the clerk works, we suggest the presiding judge consider advising the clerk in writing that he/she is insulated from the case, including a reminder that the clerk must not attempt to access these case files except in the same time, place and manner as other similarly situated members of the public who are not court employees. This practice, although not mandatory, may be of practical assistance to both the judge and the court clerk to make clear the boundaries of permissible conduct and avoid inadvertent missteps.