Opinion 19-04

March 25, 2019

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 (19-04) asking if, as an OCA approved transcriptionist and a recently elected town justice, you must disclose you have provided transcription services to attorneys who may appear before you in town court.

         We have advised that a part-time judge, who is also a court reporter, is disqualified in any case involving an attorney for whom the judge has transcribed proceedings, for a period of two years from final payment for the transcription services (see Opinion 06-92). The disqualification is subject to remittal after full disclosure on the record, provided no party is appearing without counsel (see Opinion 13-64).

         After the two-year period expires, the judge may preside if he/she can be fair and impartial. The judge in his/her sole discretion may disclose the prior business relationship and it is solely within the judge’s discretion whether to preside if a party objects (see Opinion 12-32).

         Enclosed for your convenience, are Opinions 12-32, 06-92 and 13-64, which address this issue.

                                                 Very truly yours,

                                                  George D. Marlow, Assoc Justice

                                                  Appellate Div., First Dept. (Ret)

                                                  Committee Co-Chair

                                                   Hon. Margaret T. Walsh

                                                   Supreme Court Justice

                                                   Committee Co-Chair

Encs.