Opinion 17-19

March 15, 2017

Please Note: As of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, i.e., where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]).

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 (17-19) requesting clarification of Opinion 15-58. In that opinion, the Committee advised the inquiring judge, whose court attorney had been elected district attorney, that he/she was required to disqualify him/herself for one year from all matters where the district attorney's office appeared. You now ask whether this type of disqualification is subject to remittal.

         The Rules Governing Judicial Conduct prohibit remittal in four specific instances (see 22 NYCRR 100.3[F]): where a judge, his/her spouse or relative within the sixth degree of relationship to either is a party to the proceeding (see 22 NYCRR 100.3[E][1][d][i]); where the judge is a material witness to the facts (see 22 NYCRR 100.3[E][1][b][iii]); when the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]); or if the judge has served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]).

         In addition, the Committee has advised that remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record.

Provided that none of these scenarios is implicated under the specific facts presented, a judge’s disqualification would be subject to remittal.

Enclosed for your convenience are Opinions 13-64; 12-111; and 08-15, which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

         Hon. Margaret T. Walsh

                                                           Family Court Judge

                                                           Acting Justice, Supreme Court

         Committee Co-Chair

Encls.