Opinion 17-153

October 19, 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:         Where a judge’s court attorney is negotiating potential employment with a large administrative agency that is a party to nearly every case before the judge, the judge must insulate the court attorney from all cases involving that agency. Insulation on this basis is subject to remittal after full disclosure, provided that no party is appearing without counsel.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-43; 15-14; 07-174; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge’s court attorney is in negotiations for post-judicial employment with a large administrative agency that “is a party to nearly every case before” the judge. The court attorney has interviewed with the agency’s head and is currently awaiting a decision on certain desired terms and conditions of employment. The judge states that complete insulation from work involving the agency is “virtually impossible” and asks whether a modified insulation arrangement in which the court attorney is insulated only from cases handled by a specific department within the agency, coupled with other protective measures, is permissible. One such protective measure would be the appointment of counsel to unrepresented litigants for the limited purpose of explaining the conflict that requires the court attorney’s insulation and obtaining a waiver thereof.

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]). Thus, a judge must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in any circumstance required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). If disqualification is not mandated under these objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

       Ordinarily, we advise “that a judge’s impartiality cannot reasonably be questioned based solely on his/her law clerk’s conflict; instead, it is generally sufficient to insulate the law clerk as needed,” provided the judge believes he/she can be fair and impartial (Opinion 15-14).

          In Opinion 07-174, a criminal court judge asked about his/her ethical obligations where a court attorney applied for employment with the local, large urban district attorney’s appeals bureau that regularly appeared before the judge. At the time of the inquiry, the court attorney had not yet been scheduled to interview for the new position. We advised:

[I]t is the Committee’s view to require disclosure and/or recusal in all cases involving the district attorney’s office after the court attorney applies for employment with that office would impose an unnecessary systemic burden that likely would result in a significant number of recusal requests over extended periods of time. If a judge were required to grant motions for disqualification for such a facially weak reason, the affected courts with already crushing caseloads could devolve into chaos. Judges would be forced to insulate their court attorneys from hundreds of cases, even when the judges are completely confident in their court attorneys’ integrity and competence.

The Committee therefore advises a more rational approach. The Committee believes that a judge, who selects, supervises, and knows his/her court attorney - and who is faced with this situation - can be trusted to exercise appropriate discretion either to disclose the relevant facts, to insulate his/her court attorney, or to offer recusal when and if the judge believes it necessary in a particular case prosecuted by the district attorney - or in some or all cases prosecuted by the district attorney - to preserve the court’s impartiality or the appearance of impartiality. Every day society trusts judges to exercise their discretion carefully and honestly, and in many more delicate situations than the one posed by the inquiring judge. The Committee sees absolutely no reason to force a compromise of that trust on these facts.

If the judge learns, however, that the district attorney has offered employment to the judge’s court attorney, or if the court attorney and the district attorney are actually negotiating for such a position, the judge should then act. The judge may either: 1) seek to transfer the court attorney to a civil part; or 2) insulate the court attorney, or at least offer to do so, until the court attorney either ends the negotiations for employment, rejects an offer for employment, or, if the court attorney accepts an offer for employment, until the court attorney assumes his/her new position. The Committee also recommends that the judge stress to the court attorney the crucial importance of keeping the judge fully informed of the status of his/her employment application process.

         We conclude the ameliorative proposals suggested by the inquiring judge are not permissible alternatives to insulation. Thus, as the court attorney is actively engaged in negotiations and awaiting an offer of employment, the judge must either transfer the court attorney to a part where the agency seldom appears or disclose and insulate the court attorney from all matters involving the agency (see Opinion 07-174). The obligation continues until (a) the negotiations end without an offer of employment, (b) the court attorney rejects the agency’s offer of employment, or (c) the court attorney leaves his/her current employment to assume the new position (see id.).

“Remittal” or waiver of the court attorney’s insulation is possible here, by analogy to remittal of disqualification, on consent of all parties and their counsel following full disclosure (cf. Opinion 15-43). However, if a party is appearing without counsel, insulation is mandatory and the judge may not assign counsel for purposes of obtaining the parties’ consent to remittal.