Opinion 18-113

September 6, 2018

Digest:         (1) A judge who concludes his/her social relationship with an assistant public defender requires disclosure or disqualification may nonetheless preside in cases where a defendant is represented by the Public Defender or other assistant public defenders in the same office, provided the judge can be fair and impartial. (2) Where an assistant public defender is associated with a part-time judge’s law firm, the judge (a) must prohibit that assistant public defender from appearing before any judge of the court in which he/she presides but (b) may preside in cases where a defendant is represented by the Office of the Public Defender or other assistant public defenders in the same office, provided the judge can be fair and impartial.

Rules:          Judiciary Law §§ 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.6(B)(3); Opinions 16-167; 16-114; 15-86; 15-45; 14-90; 14-82; 14-53; 13-49; 11-125; 10-94; 07-163; 06-98; 98-55; 89-70; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring part-time judge has a significant social relationship with his/her law partner and the law partner’s family, including a child who has become a part-time assistant public defender (APD) with the county Public Defender’s office. The APD will not be assigned cases in the judge’s court. The judge asks if he/she may preside in cases involving the Public Defender’s office. The judge further asks if the analysis will change if the APD also commences employment at the judge’s law firm.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         Where, as here, disqualification is not mandated by specific statutory provisions (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]), the remaining question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If not, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside.

APD’s Familial Relationship with the Judge’s Law Partner

         Without more, a judge’s impartiality generally cannot “reasonably be questioned” merely because the relative of a law firm colleague appears before him/her (see Opinions 15-86; 13-49; 22 NYCRR 100.3[E][1]). Although a judge must not permit his/her partners or associates to practice law in the court in which he/she is a judge (see 22 NYCRR 100.6[B][3]; Opinion 10-94), this prohibition does not automatically extend to the adult child of the judge’s law firm colleague.

Social Relationship Between the Judge and the APD

         We first look to the details of the relationship between the judge and his/her law firm colleague’s child. Whether a judge’s social relationship with an attorney warrants disclosure or disqualification depends on such factors as the nature of the relationship with the attorney and the frequency and context of their contacts (see Opinion 11-125 [explaining three levels of social relationships]). Because this judge considers the APD to be more than an acquaintance-level relationship under Opinion 11-125, either disclosure or disqualification will be required when the APD is personally involved in a matter before him/her; the judge must consider Opinion 11-125 to determine the precise extent of his/her obligation (see Opinion 11-125).

         However, whether the judge concludes that disclosure or disqualification is required for this APD, such obligations “do not automatically extend to the attorney’s colleagues or subordinates” (Opinion 15-45; accord e.g. Opinions 16-114; 14-90). That is, provided the judge can be fair and impartial, he/she may preside in other cases where a defendant is represented by the Public Defender or other APDs in the same office and need not disclose or offer to disqualify him/herself.

Business Relationship Between the Judge and the APD

         A part-time town justice generally may not serve as a public defender in the same county where the town court is located (see Opinion 98-55) and may not serve as a prosecutor in any jurisdiction (see e.g. Opinions 16-167; 07-163). Nonetheless, a part-time judge may be associated in the practice of law with part-time assistant district attorneys (see Opinions 06-98; 14-53; 89-70), although he/she must “refrain from engaging in any conversations, or otherwise communicating, with his or her partners about any cases that have been, that are, or that likely will be handled by the District Attorney’s office” (Opinion 06-98) and must “not preside if any of his or her partners had any involvement in a case before the judge” (id.).

         Here, we likewise conclude that a part-time attorney judge may practice law in association with an attorney who also serves as a part-time assistant public defender, subject to the restrictions noted in prior opinions (see Opinions 14-82; 14-53; 06-98; 89-70). In addition, of course, the judge “shall not permit” his/her partners or associates to practice law before any judge of the court in which he or she is a judge (22 NYCRR 100.6[B][3]). Thus, should the part-time APD join the judge’s law firm, the judge must not permit him/her to appear before the judge or his/her co-judges.

         However, provided the judge can be fair and impartial, we believe the judge may preside in other matters where a defendant is represented by the Office of the Public Defender or other APDs in the same office and need not disclose or offer to disqualify him/herself (see generally Opinion 14-53; cf. 14-82).