Opinion 19-15 (Amended )

March 14, 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:         A Family Court Judge, who previously served, by contract, as the principal attorney for the Department of Social Services

(1) is permanently disqualified, without the possibility of remittal, from cases that were pending in that office during the judge’s tenure, regardless of whether the judge had actual knowledge of or involvement in a particular matter;

(2) may immediately preside in newly filed DSS cases, even when handled by former contract attorneys the judge previously supervised, provided (i) the new case has no substantial connection with a case pending during the judge’s prior tenure and (ii) the judge can be fair and impartial; and

(3) where the newly filed DSS case has substantial connections that are material and relevant with a case that was pending in that office during the judge’s tenure, the judge must fully disclose the connection between the two cases, as well as the nature and extent of his/her involvement in the prior proceeding, but may thereafter preside, provided (i) no party is appearing without counsel and (ii) the judge concludes he/she can be impartial.

Rules:          Opinions 17-169/17-170; 17-150; 16-36; 15-51; 14-13; 97-44.

Opinion:

         A new Family Court judge formerly contracted with the local Department of Social Services (DSS) to provide legal services. During that period, it appears that DSS chose to obtain legal services by contracting with outside attorneys, rather than maintaining in-house counsel or using assistant county attorneys. Pursuant to the contract between the judge’s former law firm and DSS, the judge “served as the [principal] attorney” for DSS, and his/her associates likewise served as DSS attorneys. In addition, the judge retained certain additional contract attorneys to help provide legal services to DSS as needed. A former associate has purchased the practice and is representing DSS only “in child support matters and on adult protective matters for a limited period of time.” A former contract attorney has been hired as a full-time, in-house counsel for DSS. The judge plans to recuse from (a) cases he/she personally participated in; (b) cases his/her former associates and former contract attorneys participated in before he/she assumed the bench; and (c) cases involving the former associate who purchased the judge’s former law practice (cf. Opinions 17-150; 14-13). Following any final payment by any prior business relationship with the attorneys in question, the judge is disqualified, subject to remittal, for two years from the date of final payment (see Opinion 97-44). The judge now asks a series of questions based on these facts.

         On the facts presented, although the inquirer’s law practice was formally a private law firm, we believe the arrangement is best characterized as a quasi-governmental in nature, rather than a traditional private practice relationship, where partners and associates have common financial interests in each other’s cases and the firm’s overall profitability. As such, we will analyze the inquiry primarily as prior government employment rather than applying the disqualification rules found in Opinions 16-36, 15-51, and the like to a judge’s former law firm partners and associates.

         In Opinion 17-169/17-170, a recently elected judge had previously served as Public Defender. We said the judge is permanently disqualified, without the possibility of remittal, from cases that were pending in that office during the judge’s tenure as the Public Defender, regardless of whether the judge had actual knowledge of or involvement in a particular matter (see Opinion 17-169/17-170). Nonetheless, the judge may immediately preside in newly filed Public Defender cases, even when handled by assistant public defenders the judge previously supervised, provided (i) the new case has no “substantial connections” that are “material and relevant” to a case pending during the judge’s prior tenure and (ii) the judge can be fair and impartial (see id.). Finally, we said that on becoming aware that a newly filed Public Defender case has “substantial connections” that are material and relevant to a case that was pending in that office during his/her tenure as the Public Defender, the judge must fully disclose the connection between the two cases, as well as the nature and extent of his/her involvement in the prior proceeding, but may thereafter preside subject to certain limitations (see id.).

         We apply similar principles to this judge’s inquiry, as follows, assuming the judge can be fair and impartial¹:

1. May the judge preside over new proceedings in which DSS is a party, such as new Article 10, JD, PINS, paternity and child support matters in which the Respondents had no prior involvement with DSS except for public assistance?

         We conclude this is permissible, as such cases apparently have no substantial connections with cases the judge’s law office handled during his/her tenure as principal attorney for DSS (see Opinion 17-169/17-170).

2. May the judge preside over new proceedings in which DSS was involved with the family prior to his/her taking the bench, but in which the DSS legal department was not involved? This would include, but is not limited to, 1034 investigations, CPS investigations, provision of voluntary preventive or youth services, PINS diversion, and use of the Child Support Collection Unit wherein the family or matter was not discussed with the DSS legal department in any capacity.

         We conclude this is permissible, so long as there are no “substantial connections” between the new case and a case that was handled by the judge’s law office during his/her tenure as principal attorney for DSS (see id.).

         If the judge concludes the new case has “substantial connections” that are material and relevant to a case that was handled by the judge’s law office during his/her tenure as principal attorney for DSS, the judge must fully disclose the connection between the two cases, as well as the nature and extent of his/her involvement in the prior proceeding, but may thereafter preside (see id.). Because disclosure is mandated in lieu of outright disqualification, the judge must disqualify him/herself if any party is appearing without counsel (see id.).

3. May the judge preside over cases in which DSS was party to prior to his/her taking the bench in which the current adult Respondent was a named child, not a Respondent, in the prior petition?

         As this scenario involves the same parties in a different capacity, we believe there would be “substantial connections” between the cases. Accordingly, the judge may not preside unless all parties are represented by counsel and the judge fully discloses the connection between the two cases, as well as the nature and extent of his/her involvement in the prior proceeding (see id.).

4. May the judge preside over cases that are being handled by his/her former contract attorney, who is now serving as in-house counsel to DSS?

         As we have concluded their relationship was akin to that between attorneys working in the same government office, we conclude this is permissible, so long as these are new cases with no substantial connections with a case handled by the judge’s former law office during his/her tenure as principal attorney for DSS (see id.).

         Again, if the new cases have “substantial connections” that are material and relevant, disclosure is mandated in lieu of outright disqualification, as noted above (see id.). Thus, if the judge is unwilling or unable to disclose or if any party is appearing without counsel, disqualification is required.

5. May the judge preside over cases that are being handled by his/her former associates as Respondent’s counsel or Attorneys for the Children?

         As we have concluded their relationship was akin to that between attorneys working in the same government office, we again conclude this is permissible, provided they are new cases with no substantial connections to cases pending during the judge’s prior employment (see id.).

         Again, if the new cases have “substantial connections” that are material and relevant, disclosure is mandated in lieu of outright disqualification, as noted above (see id.). Thus, if the judge is unwilling or unable to disclose, or if any party is appearing without counsel, disqualification is required.

         Finally, in light of this disposition, we need not reach the judge’s final question, as to how long the disqualification period lasts.

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¹ Of course, if the judge doubts his/her impartiality in a particular case, he/she must not preside.