Opinion 19-154 (Amended & Reissued)
January 30, 2020
Please Note: This opinion has been modified by subsequent opinions, both with respect to the judge's obligations when the sole appearance of a conflict-causing attorney was in the centralized arraignment part, and with respect to the availability of remittal if a litigant is appearing without counsel. First, as stated in Opinion 24-83, “Where the [conflict-causing] attorney previously represented a defendant solely in the centralized arraignment part before another local judge and a different [attorney] appears before the town court for post-arraignment proceedings, the judges are not disqualified based on the [conflict-causing] attorney’s prior involvement unless it becomes necessary to revisit some aspect of the arraignment. Opinion 19-154 is modified to reflect this opinion.” Second, 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.”
Digest: A judge who has a remittable conflict with the entire public defender’s office and whose first-degree relative and law partner are also assistant public defenders in that office:
(1) may arraign indigent defendants from other local courts in the centralized arraignment part, provided they are represented by the conflict defender or assigned counsel at arraignment and the public defender’s office has not previously represented them in the matter;
(2) is disqualified in cases transferred from the centralized arraignment part where the public defender’s office represented the defendant, but the disqualification is subject to remittal after full disclosure on the record unless the judge’s first-degree relative or law partner handled the arraignment; and
(3) is disqualified from arraigning a defendant on a bench warrant issued by another local judge if the public defender’s office represents the defendant in the underlying matter, but the disqualification is subject to remittal after full disclosure on the record unless the judge’s first-degree relative or law partner is involved in the underlying matter.
Rules: Judiciary Law §§ 14; 471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(e); 100.3(E)(1)(e)(I); 100.3(F); 100.6(B)(3); Opinions 19-93; 18-84; 17-150; 17-89; 15-224; 12-25.
Opinion:
The inquiring town justice is currently disqualified, subject to remittal, in all matters involving the public defender’s office because the Public Defender also serves on the town board (e.g. Opinion 15-224). In addition, the judge’s first-degree and fourth-degree relatives are assistant public defenders in the same office.1 The judge’s fourth-degree relative is also the judge’s law partner.2 To avoid the delays and uncertainty of the remittal process, the conflict defender’s office and/or 18-B assigned counsel routinely represent all indigent defendants in the judge’s court. By contrast, in other local courts, the public defender’s office ordinarily represents most indigent defendants. Pursuant to recent initiatives, many defendants will now first be arraigned in a centralized arraignment part and their cases will then be transferred back to the appropriate local court for adjudication or further handling. When this judge is presiding in the centralized arraignment part, the conflict defender’s office and/or 18-B assigned counsel will represent defendants; in arraignments conducted by justices from other local courts, however, the public defender’s office will ordinarily represent defendants. The judge now seeks guidance on three scenarios; we will summarize and address them individually below.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). For example, disqualification is required where a fourth-degree relative “is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]) and remittal is forbidden in certain instances (see 22 NYCRR 100.3[E][1][e][I] [second-degree relative likely to appear in the courtroom as an attorney]; 100.3[F]). Generally, “where a judge must disqualify him/herself, the judge must not preside unless the disqualification is remitted – even on matters that may appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 12-25). In addition, a part-time judge “shall not permit his or her partners or associates to practice law in the court in which he or she is a judge, and shall not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law” (22 NYCRR 100.6[B][3]; cf. Judiciary Law § 471 [a judge’s law partner “shall not practice or act as an attorney or counselor, in a court, of which the judge is, or is entitled to act as a member, or in a cause originating in that court”]).
1. Arraigning Defendants Whose Cases Originate In Other Courts
First, the judge asks if he/she may arraign defendants from other local courts in the centralized arraignment part, where they are represented by the conflict defender’s office and/or 18-B assigned counsel, given that after the arraignment, once such matters are transferred to the appropriate local court, they “will likely be handled by” the public defender’s office from then on.
A judge who has a conflict with the public defender’s office may arraign an indigent defendant who is being represented by a conflict defender or an 18-B attorney, provided there is nothing to suggest the public defender’s office has previously represented the defendant in that particular case. This applies even if the judge is presiding in a centralized arraignment part and the defendant may later be represented by the public defender’s office after the case is transferred to another local court. Thus, the judge’s impartiality cannot “reasonably be questioned” here, and there is nothing to disclose (cf. 22 NYCRR 100.3[E][1]).
We expressly distinguish Opinion 19-93, which said a judge who is currently disqualified, subject to remittal, in matters involving a particular attorney has the same obligation in cases where that attorney, although not physically present, “is likely to appear per diem in that case in the future.” Here, unlike Opinion 19-93, any possible involvement by a conflict-causing attorney will occur only after the case is transferred to another local court for post-arraignment handling.
2. Post-Arraignment Transfer to the Judge’s Court
Criminal cases originating in the judge’s court will also be arraigned in the centralized arraignment part before other local judges. In such instances, the public defender’s office will likely represent the defendant at arraignment. Thus, the judge asks if he/she may preside in cases where the defendant was previously represented by the public defender’s office in the centralized arraignment part, but is now represented by a conflict defender or an 18-B attorney. The judge may need to decide issues such as release status or conditions, which the public defender’s office may have argued at arraignment.
Preliminarily, we note this judge has an unusual circumstance; not only does he/she have a “systemic” or “institutional” conflict with the public defender’s office (due to the Public Defender’s concurrent service on the town board), but he/she also has two relatives who serve as assistant public defenders in the same office, one of them within the second degree of relationship and the other his/her law partner. The familial conflicts are personal to the inquiring judge and do not automatically extend to his/her co-judge(s), if any (see e.g. Opinion 17-150 [other judges of the court may preside in matters where their co-judge’s second-degree relative appears as counsel, assuming they can be fair and impartial]). However, both the judge and his/her co-judge must prohibit the judge’s law partner from appearing in their court (see 22 NYCRR 100.6[B][3]).
Where the judge’s first-degree relative personally represented the indigent defendant at arraignment, we conclude the judge is disqualified, without the possibility of remittal (see Opinions 19-93; 18-84; 17-150; 17-89; 22 NYCRR 100.3[E][1][e][I]; 100.3[F]).3
While we assume the judge’s law partner will not represent an indigent defendant at arraignment if the matter originated in the judge’s court (see Judiciary Law § 471), for completeness, we nonetheless note that neither the judge nor his/her co-judge may preside in a matter where the judge’s law partner personally represented the defendant at arraignment (cf. 22 NYCRR 100.6[B][3]).
Otherwise, where an indigent defendant was previously represented by other members of the public defender’s office at arraignment, the disqualification is subject to remittal (see Opinions 19-93; 18-84; 17-89). While the usual three-step remittal process applies,4 we note the requisite disclosure must include full disclosure of the Public Defender’s status as a town board member who is involved in setting the judge’s salary and the court’s budget.
If and when the disqualification is remitted, the judge may thereafter decide all issues in the case, including those that were or could have been raised at arraignment (such as release status or conditions).
3. Arraigning Defendants on Bench Warrants Issued By Another Local Judge
Finally, while in the centralized arraignment part, the judge may be asked to arraign indigent defendants who were arrested on bench warrants issued by a judge in another court. The judge asks if he/she may do so where (a) the public defender’s office is representing the defendant on the underlying charge in the other court but (b) the defendant is represented by the conflict defender’s office on the bench warrant issue before the inquiring judge.
Here, we believe the public will readily perceive the bench warrant matter as inextricably intertwined with the underlying criminal case in which the public defender’s office is representing the defendant. Accordingly, we believe the judge must disqualify him/herself in such matters. However, as in Question 2 above, the disqualification is subject to remittal after full disclosure on the record, unless the judge’s first-degree relative or law partner is handling the underlying criminal case in the other local court (see 22 NYCRR 100.3[E][1][e][I]; 100.6[B][3]).5
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1 Relatives within the first degree for disqualification purposes include a parent or child of the judge or his/her spouse, or the spouse of such person. Fourth-degree relatives likewise include a first cousin by blood or marriage.
2 This fact was mentioned in the original inquiry, but we inadvertently overlooked it until the inquirer brought it to our attention.
3 As noted earlier in the text, the non-remittable disqualification based solely on the inquiring judge’s familial relationship to his/her first-degree relative is personal to the inquiring judge and does not affect any co-judge(s) (see e.g. Opinion 17-150).
4 As noted in Opinion 17-150, remittal is not permitted if any party appears without counsel 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.
5 Again, the non-remittable disqualification based on the inquiring judge’s familial relationship to his/her first-degree relative is personal to the inquiring judge and does not affect any co-judge(s) (see e.g. Opinion 17-150).