Opinion 19-27

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 judge is disqualified, subject to remittal, from presiding in a matter when an attorney from the law firm that currently represents the judge is a witness therein.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 18-84; 16-130; 09-141; 08-171/08-174; 08-17.

Opinion:

         A judge asks about his/her obligations on learning that an attorney from the law firm currently representing the judge on a personal matter is a fact witness in a proceeding before the judge. The judge learned of the attorney’s participation in reviewing the plaintiff’s motion papers, which included an affidavit from the attorney.

         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 in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         We have said that a judge must disqualify him/herself when an accountant from the judge’s personal accounting firm appears as an expert witness before him/her (see Opinion 08-17) or when the judge’s personal attorney, partners or associates appear before the judge in a representative capacity (see e.g. Opinions 18-84; 09-141; 08-171/08-174).¹ While remittal may be available if no party is appearing without counsel and the judge believes he/she can be impartial, we emphasize that remittal here requires full disclosure of the fact and nature of the representation (see 22 NYCRR 100.3[F]; Opinion 08-171/08-174).

         Thus, the inquiring judge is disqualified, subject to remittal, when an attorney from the law firm currently representing him/her is a witness in a matter pending before the judge. That the proffered testimony is in affidavit form as opposed to testimony offered in the courtroom is irrelevant to our opinion.

Note on Remittal

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

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.

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¹ With respect to a judge’s ethical obligations after the law firm’s representation of him/her ends, see Opinion 08-171/08-174.