Opinion 19-74

 June 20, 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 need not recuse him/herself if a court officer’s attorney appears on behalf of other clients, and neither insulation nor disclosure is required.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 16–99; 14-171; 13-131; 13-26; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge asks if he/she may preside if an attorney, representing the judge’s court officer in a personal legal matter, appears before the judge on behalf of other clients. The judge asks if insulation and disclosure are required. The Office of Court Administration assigned the court officer to (a) provide security to the judge and his/her court, (b) announce cases as attorneys and litigants arrive, and (c) occasionally drive the judge between court and court-related events. The court officer is not the judge’s personal appointee; unlike chambers staff, he/she does not participate in research or substantive discussions of the case.

         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]). Thus, a judge must not allow family, social, political or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]); and must disqualify him/herself if the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]); or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14). If neither disqualification nor disclosure is mandated under objective standards, however, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge doubts his/her own ability to be fair and impartial in a matter, the judge may not preside.

         Some court employee conflicts may impact a judge’s ability to remain on a case. For example, if a lawyer appearing before the judge has certain familial or attorney/client contacts with the judge’s court attorney, law clerk, secretary, or court clerk, disclosure and insulation are required (see e.g. Opinions 13-26 [attorney is either the personal attorney or a fourth-degree relative of judge’s law clerk or secretary]; 14-171 [attorney is court clerk’s second-degree relative]; 16-99 [attorney is married to the chief clerk]). In such cases, because disclosure is mandated in lieu of outright disqualification the judge cannot preside if any party appears without counsel (see id.). Significantly, these court employees’ official duties involve them materially in processing the judge’s cases.

         We have, at times, distinguished between court personnel who provide security services and those in more neutral support roles (see e.g. Opinion 13-131 [town justice may permit a local constable to serve as a part-time court security officer, but not as a court interpreter]). Here, too, we conclude the distinction is relevant. As the court officer role, by its nature, is presumptively excluded from substantive case-related activities, there is little risk of a public perception that this court officer might participate in or otherwise influence the deliberations or resolution of the judge’s cases. Nor could the public reasonably question a court officer’s ability to give professional and competent security services in the courtroom, whether in response to exigent circumstances or as directed by the judge, merely because his/her personal attorney is present with another client. Thus, we see no value in requiring the judge to exclude the court officer from the courtroom or disclose the attorney-client relationship in such matters.

         Thus, assuming the judge can be fair and impartial, he/she need not disqualify him/herself if the court officer’s attorney appears on behalf of other clients. Further, the judge need not disclose their professional relationship, nor exclude the court officer from the courtroom nor bar him/her from calling cases.