Opinion 19-157

February 24, 2020

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 (19-157) asking whether you may preside in county court over matters involving the county sheriff’s office, where your spouse serves as a non-supervisory road deputy. You also ask what your ethical obligations are, in light of your former position as a senior supervisory attorney with the department of social services with oversight of all DSS cases, when newly filed DSS matters come before you.

         Although a judge is disqualified in all matters in which his/her spouse appears or is involved, a judge is not automatically disqualified from matters involving a county sheriff’s office merely because his/her spouse is employed by that office in a non-supervisory capacity. Therefore, you may preside over such matters when other employees of the sheriff’s office appear before you, provided your spouse was not involved in the matter.

         As to your second question, the Committee has previously advised that a judge who served as the principal attorney for DSS may preside over new DSS matters provided that the new case has no “substantial connections” that are “material and relevant” to a case that was pending during the judge’s prior tenure and provided the judge can be fair and impartial (Opinion 19-15). However, if you conclude that a new matter has relevant, substantial connections to a matter the department handled during your tenure, you must fully disclose the connection between the cases as well as the nature and extent of your involvement in the prior case.

Because disclosure is mandated instead of disqualification, you must not preside if you are unwilling or unable to make full disclosure (e.g. disclosure would violate a party’s or attorney’s right to confidentiality). Also, you must not preside if a party is appearing without counsel.

         Enclosed, for your convenience, are Opinions 19-15; 18-30; 17-169/17-170; 14-07; 13-65 which address these issues.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice (Ret.)

                                       Appellate Div., First Dep’t

                                       Committee Co-Chair

                                       Margaret T. Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.