Opinion 18-19

April 2, 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).

Dear :

         This responds to your inquiry (18-19) asking whether you may, as a part-time judge who previously served as the Town Attorney, preside over matters involving attorneys you had hired to serve as town prosecutors.

         A judge must disqualify him/herself from any matter in which he/she had any involvement as a lawyer. This disqualification is not subject to remittal and does not expire (see 22 NYCRR 100.3[E][1][b][I]). Accordingly, since you previously served as the Town Attorney, you are disqualified from all cases pending in the Town Attorney’s Office while serving as Town Attorney.

         A judge is also disqualified, subject to remittal, from other matters involving his/her former clients for two years after the relationship completely ends or any outstanding fees are paid, whichever is later.

         Applying these principles here, we find that you may preside in newly filed cases involving the town in which you previously served as counsel if you had absolutely no involvement in the case, and if you believe you can be fair and impartial. In addition, you may preside over matters handled by attorneys you previously supervised, provided you can be fair and impartial.

         If you become aware that a newly filed case has substantial connections that are material and relevant to a case that was active during your tenure as Town Attorney, you should disclose the connections as well as the extent of your involvement in the prior proceeding. Thereafter, you may preside, even if a party objects, provided you can be fair and impartial. Where, as here, disclosure is mandated in lieu of outright disqualification, you must disqualify yourself from the case if any party appears without counsel in the matter.

         Enclosed, for your convenience, is Opinion 17-169/17-170 which addresses this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t

                                                 Committee Co-Chair

                                                 Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                      Committee Co-Chair

Enc.