Opinion 18-04(A)

January 24, 2018

Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).

Digest:         (1) A new full-time judge who previously served as a prosecutor without supervisory responsibilities is permanently disqualified, without the possibility of remittal, in any case where he/she had any involvement whatsoever as an attorney.

(2) Provided he/she can be fair and impartial, the judge may otherwise preside in (a) cases prosecuted by his/her former public sector colleagues, including his/her former supervisors and current social acquaintances, and (b) new, unrelated cases involving individuals the judge previously prosecuted, even if they involve the same type, or similar type of crime. Disclosure is not mandatory.

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; 17-08; 16-114; 15-211; 14-61; 14-32; 12-05; 11-125; 11-101; 08-98; 08-91; 07-23; 06-44; 04-106; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A new judge who formerly served as a teacher and as a part-time assistant district attorney (ADA) asks several questions about disclosure and disqualification in cases involving former colleagues or defendants the judge previously prosecuted.

1. Former Student and Public Sector Colleague and Current Social Acquaintance

         The judge asks if he/she may preside in cases involving an ADA who was until recently his/her colleague in the DA’s office. The attorney and the judge have some additional connections beyond those of former public sector colleagues: (1) the attorney took one class with the judge a decade ago and briefly served as a research assistant to the judge more than five years ago; (2) the judge attended the attorney’s law school graduation several years ago in the judge’s capacity as a former teacher; (3) the judge and other DA’s office colleagues attended the attorney’s wedding last year; and (4) although the attorney played no role whatsoever in the judge’s election campaign, his/her spouse hosted two fund-raising events for the judge last year. The judge and the attorney do not otherwise socialize, and the judge believes he/she can be fair and impartial in matters involving the attorney.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must 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 in specifically enumerated circumstances as 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 when the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14), and disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[F]). 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]).

         As described, the relationship between the judge and attorney seems primarily professional in nature, and socially as mere acquaintances (see Opinion 11-125). The judge’s status “as a former non-supervisory [ADA], without more, does not require the judge[’s disqualification] from all matters involving the [DA’s] office, provided he/she had absolutely no involvement in the case and was not attorney of record. Rather, the judge may preside in such matters involving his/her former [DA’s] office colleagues, provided [he/she] can be fair and impartial” (Opinion 17-150). An acquaintance-level social relationship also does not mandate disclosure or disqualification (see Opinion 11-125), even when the acquaintance is also a former public sector colleague (see Opinion 16-114). Similarly, a judge is not disqualified solely because an attorney was present at his/her campaign fund-raiser (see Opinion 04-106). We do not believe the long-ago teacher/student relationship changes this result, either by itself or in connection with all other factors. Though we have advised a judge’s attendance at an attorney’s wedding may be “perceived as evidencing a closer social relationship” that would require disclosure for a reasonable period (Opinions 11-125; see also 11-101; 06-44), we believe disclosure is unnecessary here, as this judge attended the attorney’s wedding before he/she became a judge, in his/her capacity as a work colleague in the DA’s office.

         We therefore conclude the judge may preside in matters involving the attorney, provided he/she can be fair and impartial, and disclosure is not required.

         The judge may, in his/her sole discretion, disclose the relationship if he/she wishes. As such disclosures, if any, will be purely prophylactic, they do not mandate disqualification if a party appears without counsel or if a party objects to the judge’s continuing to preside in the matter (see e.g. Opinion 16-114).

2. The District Attorney and Other Former ADA Colleagues

         The judge asks if he may preside in cases prosecuted by the DA and others in whose chain of command the judge previously served while an ADA and with whom he has no social relationships.

         The scope of a judge’s disqualification obligations due to his/her prior employment as an attorney in a government law office is determined by the degree of authority he/she exercised there (see Opinion 07-23). This judge served in a non-supervisory position.

         As explained in Opinion 15-211 (citations, ellipsis, and quotation marks omitted):

Ordinarily, a former assistant DA is only barred from adjudicating cases indicted, or begun by an arrest, while the judge was still a member of the district attorney’s staff, if the judge in any way participated personally in the cases. Similarly, the Committee has advised that a former assistant corporation counsel who becomes a judge must disqualify him/herself in any matter in which the judge participated, in any way, personally or in a supervisory capacity, during his/her tenure. The same principles apply here. Indeed, even “minimal” involvement suffices.

As a result, this judge need not disqualify him/herself from all cases involving the DA’s office, but is disqualified from any matter in which he/she participated in any way, including minimally, as a prosecutor or as a supervising attorney. Disqualification on this basis is not subject to remittal.

         The same principles apply here. We again emphasize the judge may preside in other matters involving his/her former DA’s office colleagues, including his/her former supervisors, provided he/she can be fair and impartial (see Opinion 17-150).¹

3. Individuals the Judge Formerly Prosecuted

         The judge also asks about presiding in new criminal matters involving a person he/she earlier prosecuted, on separate and unrelated cases in another court, but which involve “the same or similar type of crime.”

         We have advised that a judge may preside over new cases involving an individual the judge prosecuted in his/her former capacity as a government attorney, where “there is no substantial connection between the circumstances underlying the prior case and the facts and legal issues of the criminal case” before the judge, as long as the judge can be fair and impartial (Opinion 14-32). The judge has no obligation to disclose the former adversarial relationship or disqualify him/herself (see id.).

         Of course, as we noted, the judge is permanently disqualified, without the possibility of remittal, from any specific case in which he/she had any involvement whatsoever as an attorney (see Opinions 17-150; 15-211; 22 NYCRR 100.3[E][1][b][i]; 100.3[F]; Judiciary Law § 14).

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¹ A different analysis would apply if the judge had been a secretary or paralegal in the prosecutor’s office, rather than a prosecutor (see Opinions 14-61; 17-08). Similarly, a different analysis applies where the attorney appearing before the judge had previously been the judge’s supervisor within the court system (see Opinions 12-05 [judge is a former law clerk, and his/her former judge now appears before him/her as an attorney]; 08-98 [former judge who supervised court attorney-referee now appears before the referee as an attorney]; 08-91 [former chief court attorney who supervised court attorney-referee now appears before the referee as an attorney]).