Opinion 18-02

January 24, 2018

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 who formerly served as a probation officer:

(1) is disqualified from all cases in which he/she previously served as a probation officer;

(2) may preside in unrelated cases involving his/her former probation clients, provided he/she can be fair and impartial; and

(3) must disclose his/her prior service as a probation officer if he/she becomes aware of a material, relevant connection between the case currently before him/her and a case in which he/she previously served as probation officer. Where disclosure is mandated, the judge may preside after such disclosure, provided no party is appearing without counsel and the judge concludes he/she can be fair and impartial.

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)(a)(I)-(ii); 100.3(E)(1)(b)(iii); 100.3(F); Opinions 16-14; 15-211; 14-07; 12-06; 09-222; 06-60; 03-133; 99-168; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time judge, formerly a probation officer without supervisory responsibilities (i.e. he/she did not supervise other probation officers), asks if he/she may preside in matters involving “former probation clients.” He/she retired from the probation office nearly four years ago, and believes it more likely the former probationers will recall him/her than vice versa.

         A judge must always avoid even the appearance of impropriety (see 22NYCRR 100.2) and always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself where specifically required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge must disqualify him/herself, without the possibility of remittal, when the judge knows he/she “has a personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][1][a][I]; 100.3[F]) or “has been a material witness concerning [the proceeding]” (22 NYCRR 100.3[E][1][b][iii]; 100.3[F]). The judge is also disqualified if he/she “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]) or knows he/she “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]; Opinion 15-211).

         A judge who knows of an individual’s “prior activities, by virtue of the judge’s former employment as a police officer, peace officer, or prosecutor” may ordinarily preside in unrelated matters involving that individual, provided the judge can be fair and impartial (Opinion 06-60 [judge who “previously issued several unrelated, routine tickets for violations in his/her capacity as a Conservation Officer” may preside in a Driving While Intoxicated case involving the same defendant]; see also Opinions 12-06 [judge may preside over unrelated matters involving “a person [he/she] had arrested in [his/her] prior capacity as a road deputy”]; 99-168 [town justice who was formerly a town police officer “may preside over cases involving defendants about whose activities the judge has prior knowledge, but should not preside in cases involving persons whom the judge had used as informants while a police officer”]; cf. Opinion 09-222 [town justice who previously served as a town police officer for three decades “may adjudicate matters involving the same police department as long as the judge had no personal involvement in the matter before him/her and the judge can be impartial”]).¹

         Accordingly, if the case now before the judge is one in which the judge knows he/she personally participated as a probation officer, the judge must disqualify him/herself, as his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]; Opinions 12-06; 06-60; 99-168). Moreover, while serving as the probation officer in the case, the judge may also have acquired personal knowledge of disputed evidentiary facts at a current or previous stage of the proceeding (see generally 22 NYCRR 100.3[E][1][a][ii]; 100.3[E][1][b][iii]; 100.3[E][1][e]).

         With respect to unrelated cases involving the judge’s former probation clients (i.e. cases which have no material, relevant connection to the specific case in which the judge served as a probation officer), we believe the judge may preside as long as the judge concludes he/she can be fair and impartial (see Opinions 12-06; 06-60; 99-168; People v Moreno, 70 NY2nd 403 [1987]).

         Finally, if the judge decides that a case before him/her, involving a former probation client, has material, relevant connections to the underlying criminal case in which the judge served as a probation officer, the judge must disclose the connection (cf. Opinions 16-14; 14-07). As disclosure is mandatory, the judge must simply disqualify him/herself if any party is unrepresented (see id.). Otherwise, after disclosure, the judge may preside if he/she can be fair and impartial, even if a party objects (see id.; see also People v Moreno, 70 NY2d 403 [1987])

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¹ A judge who had supervisory responsibilities in the office, such as a police chief, is deemed to be personally involved in a broader spectrum of cases (see e.g. Opinion 03-133).