Opinion 20-140

December 1, 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 :

         We respond to your inquiry (20-140) about your law firm’s proposed representation of a non-supervisory assistant public defender at a real estate closing. You ask if you may thereafter preside in matters where that attorney or others from the same public defender’s office appear, once the matter is concluded.¹

         With respect to a specific assistant public defender who is your law firm’s client, you must disqualify yourself from all matters where that individual appears, both during the representation and for two years after the representation fully concludes and all fees are paid (see e.g. Opinions 15-51; 13-54). The disqualification is, however, subject to remittal in appropriate circumstances. Opinion 20-82/20-86 (citations omitted) explains the mechanics of the remittal process and provides cautions regarding “blanket” remittals:

Remittal, where permitted, is a three-step process…. 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. If, however, any party is appearing without counsel, remittal is not available. Nor may a judge appoint assigned counsel for the sole purpose of facilitating remittal of the judge’s disqualification.

Although institutional defenders cannot provide a “blanket” remittal of disqualification, because remittal is not available in a criminal case without the affirmative consent of each defendant client after full disclosure, the same concerns do not arise with a “blanket” remittal offered by the prosecutor. Nevertheless, “remittal is not available without affirmative consent from both sides, including the defendant and defense counsel as well as the prosecutor.” Further, any remittal, blanket or otherwise, must comply with the three-step process.

         Further, we conclude the disqualification for a current or former client who is a non-supervisory assistant public defender does not extend to other members of the Public Defenders’ office (see e.g. Opinion 09-78).

         We enclose Opinions 20-82/20-86; 15-51; 13-54; and 09-78 for your review.

                                       Very truly yours, 

                                       Hon. Margaret Walsh

                                       Justice of the Supreme Court

                                       Committee Co-Chair

                                       Hon. Lillian Wan

                                       Acting Justice of the Supreme Court

                                       Committee Co-Chair

Encls.

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¹ By telephone, the inquiring town justice explained that a different assistant public defender is regularly assigned to his/her court.