Opinion 19-150

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:         (1) Where a city court judge’s spouse supervises the public defender’s family court division and only assumes the public defender’s administrative responsibilities on an occasional, short-term basis, the judge:

(a) may preside in criminal cases where the public defender’s office represents the defendant, provided there is no related family court proceeding, the judge concludes he/she can be fair and impartial, and the judge’s spouse is not involved in the case; but

(b) is disqualified where the public defender’s office is handling both the city court criminal case and a related family court proceeding, but may permit remittal of disqualification if his/her spouse will not personally appear in the courtroom.

(2) If the public defender becomes unavailable on a long-term, indefinite basis, such that the public will reasonably perceive the judge’s spouse as the acting or de facto public defender, the judge is disqualified from all public defender matters. The disqualification is again subject to remittal only if the judge’s spouse will not personally appear in the courtroom.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(e)(I)-(ii); 100.3(F); Opinions 19-110; 19-13; 18-175; 18-27; 17-150; 16-130; 10-05; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time city court judge asks if he/she may preside in matters involving the public defender’s office, where his/her spouse is the supervising attorney of the public defender’s family court division. The judge’s spouse does not ordinarily supervise attorneys who would appear in the city court, as his/her subordinates do not handle criminal cases. However, the public defender’s office may handle criminal proceedings and family court proceedings involving the same underlying allegations. Presumably, the assistant public defenders handling a family court matter would consult with those handling related criminal matters in city court. The judge’s spouse also “assumes the responsibilities of the Chief Public Defender in [his/her] absence, which would include a supervisory function of all staff attorneys, albeit a temporary one, subject to the ultimate supervisory direction of the Chief Public Defender.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must disqualify him/herself where specifically required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge is disqualified if he/she “knows ... the judge’s spouse is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]). If so, the judge “(I) ... must disqualify him/herself without the possibility of remittal if such person personally appears in the courtroom during the proceeding or is likely to do so, but (ii) may permit remittal of disqualification provided such person remains permanently absent from the courtroom” (id.; 22 NYCRR 100.3[F]). Conversely, if disqualification is not mandated under objective criteria, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         In general, where a judge’s fourth-degree relative is a government attorney, the judge is disqualified from cases where the relative has any personal involvement (whether directly or as supervisor), but may otherwise preside in cases involving the governmental law office without disclosure or disqualification (see e.g. Opinions 19-13; 18-175; 18-27; 17-150).¹ Where the judge’s relative holds a high-level supervisory position in a governmental office, the obligation is broader, though the “results vary depending on the relative’s role, visibility, and overall level in the agency” (Opinion 18-27 [citation omitted]). For example, where the judge’s relative heads the office and is attorney of record, the judge is disqualified, subject to remittal where permitted, for all attorneys in the office (see e.g. id.).

         Thus, the preliminary question is whether the judge’s spouse must be treated as supervising the entire public defender’s office simply because he/she may step into the public defender’s shoes from time to time in his/her absence.

         Certainly, if the public defender becomes unavailable on a long-term, indefinite basis (perhaps due to suspension/disbarment, catastrophic illness, or the like), the judge’s spouse could be seen as the acting or de facto public defender and thus is presumed to be personally involved in every case as if he/she were the attorney of record. In this unusual circumstance, the judge would be disqualified from all public defender cases, subject to remittal only if his/her spouse will not personally appear in the courtroom (see e.g. Opinion 10-05; 22 NYCRR 100.3[E][1][e][I]-[ii]).

         But where the judge’s spouse merely assumes the public defender’s administrative responsibilities during ordinary, garden-variety absences (a week or two of vacation, personal leave, illness, or the like), we believe the public defender, rather than the judge’s spouse, unambiguously remains the attorney of record and supervisor for all criminal matters. Thus, we have identified two ethically relevant categories of cases.

1. Criminal Matters Without Related Family Court Proceedings.

         When the public defender’s office appears in city court on a criminal matter, absent a related Family Court case, the judge need not disclose his/her spouse’s employment nor offer to disqualify him/herself, provided the judge concludes he/she can be fair and impartial and the judge is satisfied his/her spouse has no involvement in the case (see e.g. Opinions 18-27 [a judge whose second-degree relative is the First Deputy District Attorney may preside in criminal cases if he/she is satisfied that his/her relative is completely insulated from any involvement in evaluation, supervision or oversight of any matter that may be assigned to the judge]; 17-150 [“when a judge’s first or second-degree relative is an attorney in a government law office; if the judge’s relative is not involved in the matter personally or as a supervisor, and is not the attorney of record, the judge may preside without disclosure or disqualification in other matters involving the same office”]). In this circumstance, disclosure of the spouse’s employment is purely discretionary.

2. Criminal Matters With Related Family Court Proceedings.

         On these facts, we deem the judge’s spouse involved in all family court proceedings handled by the public defender’s office. Thus, when the public defender’s office appears in city court on a criminal matter, and there is a related Family Court proceeding, the judge is disqualified. If the judge’s spouse “personally appears in the courtroom during the proceeding or is likely to do so,” remittal is unavailable (22 NYCRR 100.3[E][1][e][I]). Otherwise, remittal is available as permitted in Section 100.3(F), provided the judge’s spouse “remains permanently absent from the courtroom” (22 NYCRR 100.3[E][1][e][ii]).

         As described in Opinion 16-130 (footnote added and citations omitted), where permitted, remittal is a three-step process:

As always, remittal is not permitted if any party appears pro se² 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.

________________________________

¹ We recently described our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office (see Opinion 19-110).

² In a criminal case where a defendant is represented by the public defender's office, we assume it is unlikely any party will be appearing without counsel. Nonetheless, we suppose it might happen in a case involving multiple defendants, or possibly if a non-attorney police officer is permitted to prosecute the case. In such instances, as always, remittal is unavailable if any party is appearing pro se.