Opinion 17-89

August 8, 2017

Dear :

         This responds to your inquiry (17-89) asking whether you may preside over matters assigned to staff attorneys in the Public Defender’s office, if the Public Defender is elected to the Town Board.

The Committee has previously advised that, absent remittal,¹ a town justice should not preside over any case in which an attorney representing a party is also a member of the Town Board and thus participates in setting the justice’s salary.

The Public Defender is the attorney of record for all cases handled by his/her office, and the staff attorneys are all answerable to him/her. Therefore, you would also be disqualified, subject to remittal, if any staff attorneys in the Public Defender’s Office were to appear before you.

Should the Public Defender be elected to the Town Board, you may wish to consult with your Administrative Judge to identify an administrative solution to this problem.

Enclosed for your convenience are Opinions 15-58; 14-84; 08-212; 94-61; 91-63 and 88-17(b)/88-34, 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.

_____________________

         ¹ 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” (Opinion 14-84 n1).