Opinion 19-75

June 20, 2019

Digest:         A court attorney-referee, who works closely with part-time judges in his/her capacity as counsel to their administrative judge, may ordinarily preside when part-time attorney judges appear on behalf of private clients.

Rules:          Judiciary Law §§ 14, 16; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); 100.4(G); 100.6(A); Opinions 15-209; 14-157; 11-41; 08-98; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring full-time court attorney-referee also serves as counsel to an administrative judge for the town and village justice courts. In that capacity, the referee works closely with the local justices. He/she (a) serves as a resource for them; (b) provides them with administrative, legal, educational and other advice and support; (c) assists the administrative judge in “administrative[ly] supervis[ing]” them; (d) provides them with continuing judicial education; and (e) administers the centralized arraignment parts to which they are assigned. The referee asks if he/she may preside when a local town or village justice appears before him/her as an attorney on behalf of a private client.

         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 in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge must disqualify him/herself when the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14), and disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[F]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]). Court attorney-referees, as quasi-judicial officials, must follow the Rules Governing Judicial Conduct in performing “their judicial functions and otherwise shall so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]).¹

         The referee’s responsibilities appear akin to what the staff attorneys do at the City, Town and Village Courts Resource Center, i.e. to provide legal advice, guidance, and support to part-time judges (see generally Opinion 15-209 [concluding these permissible ex parte communications need not be disclosed]). Nothing in the inquiry suggests the referee has an attorney-client relationship with these part-time judges; indeed, to the contrary, a full-time referee may not practice law (see 22 NYCRR 100.4[G]; Opinion 11-41). Nor is the referee’s advice to part-time judges concerning their judicial responsibilities and caseload likely to touch on any cases they may handle as private practitioners, since they cannot “practice or act as an attorney” in any matters “originating in [their] court” (Judiciary Law § 16). Thus, we conclude the referee’s responsibilities do not implicate any of the specifically enumerated grounds for disqualification.

         Although Opinion 15-209 did not address disqualification, we addressed such issues in Opinion 14-157. There, we said a part-time judge who provides advice to certain municipal attorneys on municipal issues in the judge’s capacity as counsel to a nongovernmental association, but who has no attorney/client relationship with such attorneys, may preside in unrelated cases when such attorneys appear on behalf of private clients (see Opinion 14-157). Here, too, we conclude the referee’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) solely because a part-time judge, now appearing as a lawyer on behalf of a private client, previously consulted with the referee concerning a case he/she was handling as a judge. Nor does the fact that the referee also assists the administrative judge in the “administrative supervision” of local part-time judges, including the referee’s oversight of the centralized arraignment part and involvement in training programs, raise reasonable questions about his/her impartiality when judges appear before him/her as private attorneys.

            As neither disqualification nor disclosure is mandated under objective standards, the referee “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Thus, the referee may preside, unless he/she doubts his/her impartiality in a specific matter.

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¹ We have, however, recognized some differences in the mechanics of disqualification for court attorney-referees, as they “have no power to relieve themselves from their duties” and must therefore advise their appointing judge when they are disqualified in a case “so that the judge can relieve the court attorney of his/her responsibilities with respect to the case and assign another” referee (Opinion 08-98, citing CPLR 4301).