Opinion 17-67

May 4, 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:         A judge is disqualified, subject to remittal, from all matters involving an attorney who was hired by the judge’s second-degree relative to pursue litigation concerning real property in which the judge has an interest. This obligation continues for two years after the representation completely terminates.

Rules:          22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(F); Opinions 17-03; 16-66; 13-132; 08-171/08-174.

Opinion:

         A judge’s second-degree relative¹ retained counsel to pursue litigation concerning real property in which the judge also has an interest. The matter has recently concluded. The judge now asks if he/she may preside when the attorney appears as defense counsel in cases involving alleged violations of the vehicle and traffic law or penal statutes or as counsel in landlord/tenant and small claims cases. With respect to criminal matters, the judge also asks if he/she may preside where the attorney appears on behalf of a defendant with a negotiated plea.²

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend judicial prestige to advance private interests (see 22 NYCRR 100.2[C]). A judge must also disqualify him/herself in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         When a private attorney who is currently representing the judge’s second-degree relative appears before the judge, the judge is disqualified subject to remittal while the representation is ongoing (see Opinion 13-132). Ordinarily, for the first two years after the representation is fully concluded, disclosure is mandatory when that attorney appears before the judge (see Opinions 16-66; 13-132). If any party is appearing without counsel, the judge must simply disqualify him/herself but, otherwise, disqualification is in the judge’s sole discretion after disclosure (see id.).

         Conversely, when an attorney is representing the judge in a personal legal matter, the judge has greater obligations in the two-year period following conclusion of the representation. In particular, the judge must continue to disqualify him/herself, subject to remittal in appropriate circumstances, for a period of two years whenever the attorney appears in the judge’s court (see Opinion 08-171/08-174).

         Here, although the judge’s second-degree relative, rather than the judge, retained counsel, the judge also had an interest in the subject matter in controversy. Accordingly, under the circumstances, we believe the analysis should proceed as if the judge had personally retained the attorney. The judge is thus disqualified, subject to remittal, for two years from the conclusion of the representation (see Opinion 08-171/08-174). Remittal will require full disclosure on the record of the fact and nature of the representation and how it affects the judge’s interests (see id.).

         As always, remittal is not permitted if any party is appearing without counsel, if the judge is unwilling or unable to make full disclosure of the basis for disqualification, or if the judge doubts his/her ability to be impartial. 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 that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate 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 into the record of the proceeding (see e.g. Opinion 17-03 n 3; 22 NYCRR 100.3[F]).

         The same standard applies in all cases in which the attorney appears, including in a criminal case where the attorney has negotiated a plea for his/her client without court intervention.

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¹ Second-degree relatives include grandparents, siblings, and grandchildren by blood or marriage (cf. 22 NYCRR 100.0[C]).

² We infer from the inquiry that the attorney is a solo practitioner; if this is not the case, the judge may write in for guidance concerning the attorney’s partners and associates.