Opinion 19-148(A)

December 12, 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).

Digest:         Where a judge previously served as a non-supervisory assistant county attorney and his/her spouse continues to serve in such capacity:

(1) Judge’s Own Cases. The judge is permanently disqualified, without the possibility of remittal, from all cases in which he/she participated in any way as an attorney.

(2) Spouse’s Cases. The judge is disqualified from all cases involving his/her spouse, and remittal is not permitted unless all specified conditions are strictly met.

(3) Related Cases. If the judge believes the family offense, neglect/abuse, or JD/PINS charges he/she handled as an ACA are materially relevant to the matter currently before him/her, then he/she must fully disclose the connection between the two cases. Because disclosure is mandated in lieu of disqualification, the judge is disqualified if any party is appearing without counsel. Otherwise, assuming the judge can be fair and impartial, he/she retains full discretion as to whether to preside, even if a party objects.

(4) Other, Unrelated Cases. The judge may otherwise immediately preside in other cases involving the county attorney’s office, including those (a) prosecuted by his/her former public sector colleagues and supervisors; (b) involving respondents or other individuals who appeared in family offense, neglect/abuse, or JD/PINS matters the judge handled, provided the judge can be fair and impartial; and (c) involving an individual who is or was a respondent in family court in a matter handled by the judge’s spouse. Neither disclosure nor disqualification is required, and there is no waiting period.

(5) Investigations. The judge may preside in matters involving individuals who were merely “under investigation” for possible future family offense or neglect/abuse matters during the judge’s tenure as ACA, provided (I) neither the judge nor his/her spouse had any involvement whatsoever and (ii) the judge can be fair and impartial.

(6) Pistol Permits. With respect to individuals who were respondents in administrative pistol permit proceedings handled by the judge, the judge is disqualified if he/she has personal knowledge of disputed evidentiary facts in the proceeding before him/her. If the pistol permit itself is a factor in the city court matter, the judge must disqualify.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(b)(I)-(ii); 100.3(E)(1)(e); 100.3(E)(1)(e)(I)-(ii); 100.3(F); Opinions 19-110; 19-13; 18-04(A); 18-02; 17-150; 17-10; 16-163/16-170; 16-130; 15-211; 14-07; 07-30; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquirer previously served as a part-time judge and an assistant county attorney in a non-supervisory capacity, but is now assuming a full-time judicial position. The judge’s spouse continues to work for the county attorney’s office as an assistant county attorney without supervisory responsibilities, primarily handling abuse/neglect and JD/PINS cases in family court. We summarize and address the judge’s questions individually below.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself when his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge knows “the judge served as a lawyer in the matter in controversy” or “a lawyer with whom the judge previously practiced served during such association as a lawyer concerning the matter” (22 NYCRR 100.3[E][1][b][i]-[ii]) and when the judge’s spouse is “acting as a lawyer” in the proceeding (see 22 NYCRR 100.3[E][1][e]). Moreover, where a judge previously served as a lawyer in the matter in controversy or the judge’s spouse is likely to appear in the courtroom, disqualification is not subject to remittal (see 22 NYCRR 100.3[F]; cf. Judiciary Law § 14 [“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding … in which he has been attorney or counsel”]). If the judge doubts his/her ability to be fair and impartial in a particular matter, he/she must not preside.

1. Cases involving former respondents in (a) family offense proceedings, (b) neglect/abuse matters, and/or (c) JD/PINS matters the judge handled as an ACA.

         As an assistant county attorney, the judge presented applications on behalf of petitioners, and in opposition to respondents, in family offense proceedings, litigated neglect and abuse matters against respondent parents, and (before assuming part-time judicial office) prosecuted juvenile delinquency and persons in need of supervision (JD/PINS) cases. The judge now asks about his/her obligations in matters where such respondents, petitioners, or non-respondent parents appear.

         While there is no across-the-board two-year waiting period here before the judge can handle matters involving the county attorney’s office, there are still several issues to consider.¹

         Initially, the judge is permanently disqualified, without the possibility of remittal, in any case where he/she had any involvement whatsoever as an attorney, whether in a direct or supervisory capacity (see Opinions 18-04[A]; 07-30; 22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14).² As we have explained, “even ‘minimal’ involvement suffices” to trigger disqualification (Opinion 15-211).

         Provided the judge can be fair and impartial, and assuming his/her spouse is not involved in the matter (see Question 4 below), the judge may otherwise preside in other cases involving the county attorney’s office, including those prosecuted by his/her former public sector colleagues and supervisors (see Opinions 18-04[A]; 15-211; 19-13)³ and new, unrelated cases involving respondents or other participants in family offense, neglect, and abuse matters the judge handled, even if they involve the same type, or similar type of crime (see Opinions 18-04[A]; 18-02 [“cases which have no material, relevant connection” to those the judge handled in his/her prior employment]). Disclosure is not mandatory in these instances.

         As the judge specifically asks about handling cases where a defendant now appearing before him/her was previously a respondent in a neglect/abuse or family offense proceeding the judge handled as an assistant county attorney, we also address how to handle related matters.⁴ If the judge concludes that charges from the prior proceeding are materially relevant to the matter currently before him/her, the judge must disclose the connection (see e.g. Opinions 17-10; 14-07; 18-02). Because 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]).

2. Cases involving individuals who were “under investigation” for possible future family offense proceedings or neglect/abuse matters.

         If the case was not pending in the County Attorney’s office during the judge’s employment and neither the judge nor his/her spouse have had any involvement in the case personally or in a supervisory capacity, the judge may preside without any obligation to disclose or recuse (see e.g. Opinion 19-13 [item #4]). If the judge was personally involved, see Question 1. If the judge’s spouse was personally involved, see Question 4.

3. Cases involving individuals who were respondents in administrative pistol permit proceedings in matters the judge handled as an assistant county attorney.

         The general principles are set forth in Question 1. We conclude the judge is disqualified if he/she has personal knowledge of disputed evidentiary facts in the proceeding before him/her (see 22 NYCRR 100.3[E][1][a][ii]). If the pistol permit itself is a factor in the city court matter, the judge must disqualify.

4. Cases involving the judge’s spouse as a non-supervisory assistant county attorney.

         The judge’s spouse is a non-supervisory assistant county attorney who handles neglect and abuse petitions and JD/PINS matters; he/she will not appear in the judge’s court. The judge states that, if he/she becomes aware that a matter his/her spouse is handling in family court “has a material relevant connection to a criminal proceeding” in the judge’s court, the judge will not preside but will instead ensure the case is assigned to a co-judge. The judge thus only asks if he/she may preside in a criminal case where the judge knows, or becomes aware, that the defendant was the respondent in an “entirely unrelated” matter handled by the judge’s spouse in Family Court.

         If the judge knows his/her spouse has any involvement whatsoever as a lawyer in a case before the judge, either personally or in a supervisory capacity, the judge is disqualified (see Opinions 19-13; 17-150; 22 NYCRR 100.3[E][1][e]). Remittal of disqualification is forbidden if the judge’s spouse “personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]; Opinions 19-13; 17-150). Indeed, remittal not permitted unless (a) the judge is confident he/she can be fair and impartial and is willing to preside, (b) all parties are represented by counsel, and (c) the judge’s spouse “remains permanently absent from the courtroom” (22 NYCRR 100.3[E][1][e][ii]; 100.3[F]; Opinions 19-13; 17-150). If all three criteria are met, remittal may be available after full disclosure on the record, following the usual three-step process (see Opinion 16-130 [citations omitted]):

As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

         Because the specific scenario the judge asks about here necessarily assumes his/her spouse has had no involvement whatsoever in the case before the judge – indeed, the judge’s entire premise is that the case before him/her is “entirely unrelated” to his/her spouse’s family court case – we conclude the judge need not disclose or disqualify him/herself, provided he/she can be fair and impartial.

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¹ A two-year rule applies with respect to a judge’s former private-sector partners and associates, but not to former public sector colleagues. Opinion 16-163/16-170 involved the unusual circumstance where the judge had been both an assistant public defender and a partner in a private law firm, and the judge’s former law partner coincidentally assumed a new position “supervis[ing] all of the attorneys in the Public Defender’s office.”

² We recently described our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office (see Opinion 19-110).

³ As noted in Opinion 16-163/16-170, we have not applied Section 100.3(E)(1)(b)(ii) to a judge’s former public sector colleagues.

⁴ We did not address this issue in Opinion 18-04(A).