Opinion 17-169/17-170

December 7, 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:(1) A full-time County/Family Court judge who previously was a practicing attorney in the same county:

(a) is permanently disqualified, without the possibility of remittal, from matters in which the judge participated as an attorney in any way, including minimally, in a personal or supervisory capacity; and

(b) is disqualif ied, subject to remittal, from matters involving his/her former clients for two years after the relationship completely ends or final payment of any fees pending or owed to the judge, whichever is later.

(2) In addition, where the judge previously headed the Public Defender’s office:

(a) the judge is permanently disqualified, without the possibility of remittal, from cases that were pending in that office during the judge’s tenure as the Public Defender, regardless of whether the judge had actual knowledge of or involvement in a particular matter;

(b) the judge may immediately preside in newly filed Public Defender cases, even when handled by assistant public defenders the judge previously supervised, provided (i) the new case has no substantial connection with a case pending during the judge’s prior tenure and (ii) the judge can be fair and impartial;

(c) on becoming aware that a newly filed Public Defender case has “substantial connections” that are material and relevant to a case that was pending in that office during his/her tenure as the Public Defender, the judge must fully disclose the connection between the two cases, as well as the nature and extent of his/her involvement in the prior proceeding, but may thereafter preside subject to certain limitations; and

(d) the judge may preside in cases that do not involve the Public Defender’s office, even though that office currently represents or represented a “co-defendant” in a separate case where the judge had no involvement, subject to certain limitations.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 17-150; 17-100; 17-10; 16-163/16-170; 16-123; 16-36; 15-211; 15-126; 15-51; 14-10; 14-07; 13-54; 07-30; 07-23; 95-86(A); 93-62.

Opinion:

         Two newly elected County Court judges, who each previously served as the Public Defender within their respective counties, request guidance on their disqualification obligations as they preside in County and/or Family Court matters. One of them also maintained a private practice that included appearances as attorney for the child. As neither judge has provided information concerning any possible partners or associates, we assume for present purposes that both judges were sole practitioners in their private practice.

         A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must also disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), including when the judge knows he/she previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]).

I. General Principles

         A judge must disqualify him/herself from any matter in which he/she had any involvement as a lawyer. The disqualification is not subject to remittal and does not expire (see 22 NYCRR 100.3[E][1][b][i]; 100.3[F]; Judiciary Law § 14; Opinions 17-150; 16-163/16-170; 15-126).

         Thus, these judges must disqualify themselves and may not preside over any matter in County or Family Court in which they participated in any way, in a personal or supervisory capacity, while serving as the Public Defender or as an attorney for the child, without the possibility of remittal (see id.). Even minimal involvement suffices.

         A judge is also disqualified, subject to remittal, from presiding in any matters involving former clients for two years after representation of the former client ends or any outstanding fees are paid, whichever is later (see Opinion 17-150). The same rule applies for public defender (institutional) clients (see Opinion 17-100). However, disqualification is required only if the judge recognizes a party as a former client or if such former representation is otherwise brought to the judge’s attention (see Opinions 17-150; 16-36). In our view, this procedure is required because the judge’s impartiality might reasonably be questioned in matters involving former clients, and the judge’s timely disqualification prevents any possible appearance of impropriety (see Opinions 16-36; 15-51; 13-54). After the two-year period, it is within the judge’s discretion whether to disclose the prior attorney/client relationship. In exercising his/her discretion, however, the judge should consider the factors set forth in Opinion 15-51.

         If these judges practiced law in a private law firm or in association with other private lawyers, additional restrictions would apply (see e.g. Opinions 16-36; 15-126).

II. Effects of Prior Service as the Public Defender

         The scope of a judge’s disqualification obligations due to his/her prior employment in a government law office are determined by the degree of authority he/she exercised there (see Opinion 07-23). Thus, a judge who is a former assistant public defender may preside in cases handled by the Public Defender’s office, if he/she had absolutely no involvement in the case and was not the attorney of record (see Opinions 17-150; 15-211; 07-30). A judge who supervised only the Public Defender’s felony unit, but was not in the chain of command for other units, is disqualified from all felony matters, but may preside in other matters where he/she was not in the chain of command and had no direct or supervisory involvement in the specific matter. Conversely, a judge who served as the Public Defender is disqualified from all cases pending in the Public Defender’s office during the judge’s tenure as Public Defender. As the official in charge under whose name and/or authority proceedings were conducted, the judge is deemed to be directly involved in each matter of the office (see Opinions 14-10; 14-07; 07-23).

         A) Cases Pending During Judge’s Prior Tenure as the Public Defender. Where, as here, a judge previously served as the Public Defender, he/she is disqualified from all cases pending in the office during his/her tenure (see Opinions 14-10; 14-07; 07-23).

         B) Newly Filed Public Defender Cases. In general, the judge may immediately preside in newly filed cases, i.e. cases that were not pending in the Public Defender’s office during the judge’s tenure (and which do not involve recent former clients during the applicable two-year period¹) if he/she had absolutely no involvement in the case and believes he/she can be fair and impartial (see Opinions 14-10; 14-07). The judge may preside over matters handled by assistant public defenders he/she previously supervised, provided he/she can be fair and impartial (cf. Opinion 95-86[A] [judge who was formerly the District Attorney may preside in matters involving an assistant district attorney the judge had originally appointed]).

         C) Newly Filed Public Defender Case with Substantial Connections to Case Pending During Judge’s Prior Tenure. If the judge becomes aware that a newly filed case before the judge has “substantial connections” that are material and relevant to a case that was active during the judge’s tenure in the Public Defender’s office, the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the prior proceeding (see Opinion 14-10). The disclosure may be made either in writing or on the record (id.); it is not necessary to do both. Because disclosure is mandated in lieu of disqualification, the judge must not preside (a) if the judge is unwilling or not legally permitted to make full disclosure or (b) if any party is appearing without counsel (see Opinions 17-10; 16-123).

         Otherwise, provided the judge can be fair and impartial, the judge may preside in the newly filed matter following full disclosure, even if a party objects (see Opinion 14-10). As we noted in Opinion 14-10:

In deciding if he/she can be fair and impartial in the [newly filed] matter, the judge should consider such factors as: the nature and extent of the judge’s involvement in the [prior] proceeding; whether the judge is aware of relevant and material non-public information about the litigant due to his/her prior employment; and whether the judge will be able to decide the [newly filed] case based solely on the admissible evidence and the permissible arguments and considerations presented in the proceeding before the judge.

D) Conflict Defender or Assigned Counsel Case Involving a “Co-Defendant” of a Separate Public Defender Case. The judge in Inquiry 17-169 states there are “several instances where the Public Defender’s Office represents or represented an individual during my tenure as the Public Defender where a Co-Defendant was represented by either the Conflict Office Attorney or an Assigned Counsel Attorney.” The judge asks if he/she may “immediately preside over the Co-Defendant’s case.” We conclude the judge may do so, provided he/she can be fair and impartial and had no involvement whatsoever in that case as an attorney. In reaching this conclusion, we necessarily presume the judge will be able to decide the case based solely on the admissible evidence and the permissible arguments and considerations presented in the proceeding before the judge, without considering any non-public information he/she may have obtained during his/her former employment (cf. Opinion 14-10).

III. Prior Service as Attorney for the Child

With respect to Inquiry 17-170, where the judge formerly served as attorney for the child, as previously noted, the judge (a) is disqualified for two years, subject to remittal, from presiding in matters involving a child who is his/her former client, and (b) must never preside as a judge in any case in which he/she previously acted as an attorney (see Opinions 16-163/16-170; 16-36 fn 1; 15-126; 15-51 fn 2; 13-54; see also Opinion 93-62 [a judge who was formerly a prosecutor “may preside over violation of probation matters,” where the alleged violation occurred after the judge assumed judicial office, “provided the judge was not involved in the matter before going on the bench”]).

         However, the judge is not forever barred from presiding over all matters involving a particular child, based solely on the fact that the child was the judge’s client in a different, unrelated case. After the two-year period has elapsed for a child who is a former client, where there is no substantial connection between the circumstances underlying the prior matter and the facts and legal issues of the matter currently before the judge, the judge has no obligation to disqualify him/herself or to disclose the prior case or his/her connection to it (see Opinion 14-07).

         If the judge becomes aware that a case before him/her has “substantial connections” that are material and relevant to a case where he/she previously served as attorney for the child, the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the prior proceeding (see Opinion 14-10). Because disclosure is mandated in lieu of disqualification, the judge must not preside (a) if the judge is unwilling or not legally permitted to make full disclosure or (b) if any party is appearing without counsel (see Opinions 17-10; 16-123).

         Otherwise, provided the judge can be fair and impartial, the judge may preside in the substantially connected matter following full disclosure, even if a party objects (see Opinion 14-10). Again, in deciding if he/she can be fair and impartial, the judge should consider the factors set forth in Opinion 14-10 and reiterated above in II.C.  

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            ¹Because the judge was the Public Defender, he/she is disqualified, subject to remittal, from all matters involving recent former clients of the Public Defender’s office for two years. The two-year period runs from the earlier of (i) the date the former client’s attorney/client relationship with the Public Defender’s office completely terminated or (ii) the date the judge’s employment as Public Defender terminated.