Opinion 20-185

December 10, 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).

Digest:        (1) A judge who previously served process for a supervisory assistant district attorney’s private law office is (a) permanently disqualified, without the possibility of remittal, from any case in which the judge served process and (b) disqualified, subject to remittal, from matters involving that law office for two years after the business and financial relationship between them completely ends. The judge may nonetheless preside in uncontested traffic cases where the defendant pleads guilty by mail.

(2) Where the judge previously served process and performed contracting work for a private law firm that also employs the judge’s spouse as a secretary, the judge is (a) permanently disqualified, without the possibility of remittal, from any case in which the judge served process and (b) disqualified, subject to remittal, from matters involving that law firm for two years after the process serving and contracting relationship completely ends or until the judge’s spouse’s employment ends, whichever is later.

Rules:         VTL § 1805; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(E)(1)(b)(i), (iii); 100.3(F); Opinions 20-82/20-86; 20-22; 10-127; 07-127; 99-87; 99-80.

Opinion:

         An incoming village justice asks about potential conflicts involving two attorneys, based on the judge’s former work as a process server and the judge’s spouse’s ongoing employment as a secretary.

         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 not allow family, social, political or other relationships to influence the judge’s judicial judgment or conduct (see 22 NYCRR 100.2[B]) and must not convey, or permit others to convey, the impression that others are specially positioned to influence him/her (see 22 NYCRR 100.2[C]). Therefore, a judge is disqualified in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). In some instances, such as where disqualification is because the judge “served as a lawyer in the matter” (22 NYCRR 100.3[E][1][b][i]) or “has been a material witness concerning” the matter (22 NYCRR 100.3[E][1][b][iii]), the judge’s disqualification is not subject to remittal (see 22 NYCRR 100.3[F]).

1. Judge’s Work as Process Server for Assistant District Attorney’s Private Practice

         Before assuming the bench, the judge-elect served as a process server for a private attorney who is also a high-level assistant district attorney (ADA) and prosecutes “all matters in the Village, including traffic tickets.” The judge did so as an independent contractor, with a set fee for serving process. Due to pandemic-related court closures, the judge last served process for this attorney in early March.

         We have previously found that “the services of a private investigator and of a process server are similar in nature” for conflicts purposes (Opinion 10-127). We have advised that a part-time judge should not work as a private investigator or process server on matters that might fall within the jurisdiction of the judge’s court, even if the matter would be assigned to the other judge (see Opinions 10-127; 07-127; 99-80). Where a part-time judge works as an investigator, the judge is disqualified “in any matter ... in which the judge had performed investigative services” (Opinion 99-80) and also in all matters involving an attorney for whom the judge performed investigative work, for two years after their business relationship has completely ended (see Opinions 07-127; 99-80).

         Applying these principles here, we conclude that a judge who previously served process for a supervisory ADA’s private law office is permanently disqualified, without the possibility of remittal, from any case in which the judge personally served process (cf. Opinion 99-80; 22 NYCRR 100.3[F] [forbidding remittal of disqualification where judge served as a lawyer in the matter or in controversy or has been a material witness concerning it]).

         In addition, the judge is disqualified, subject to remittal, from matters involving the ADA for two years after the business and financial relationship between them completely ends. We note that the two-year period starts from the end of the financial and business relationship between the judge and the attorney. Ordinarily, the relationship ends when the judge has completed the last process serving assignment and has received payment (see generally Opinions 07-127; 99-80). However, if the judge thereafter solicited process serving work from the attorney, the two-year period should run from that later date on which the judge last solicited such an assignment.¹ During this two-year period, the judge is also disqualified, subject to remittal, from any matter in which the attorney’s private law office appears before the judge. As always, remittal is a three-step process designed to ensure fully informed, voluntary, affirmative consent by the parties and their counsel (see e.g. Opinions 20-82/20-86; 20-22).² Remittal is not available if the judge cannot be fair and impartial or if any party is appearing without counsel (see id.).

         Disqualification is not required in matters where a defendant motorist pleads guilty by mail under VTL § 1805 in that, as we understand it, the ADA would not appear before the judge.

         Finally, since nothing in the inquiry suggests that prosecutors other than this supervisory ADA appear in the judge-elect’s court, we need not reach that issue at this time.

2. Spouse’s Employment as Secretary and Judge’s Work as Process Server or Contractor for Law Firm

         The judge-elect’s spouse is employed as a legal secretary for a private law firm and the judge also served process for the firm earlier this year and did some electrical contracting work for them over a year ago. The judge asks if there are any conflicts due to these connections.

         Where, as here, a judge’s spouse works for a private law firm in a clerical capacity, we have said the judge’s impartiality can reasonably be questioned when an attorney from that law office appears and therefore the judge is disqualified (see Opinion 99-87). Again, disqualification on this basis is subject to remittal following the usual three-step process (see fn 2, supra), provided no party is appearing without counsel.

         In addition, as noted above, the judge is permanently disqualified in all cases in which the judge personally served process, and is disqualified, subject to remittal, in matters involving the firm for two years after the judge’s business relationship with the firm completely terminated (see Opinions 10-127; 07-127; 99-80). Again, the relationship ordinarily ends when the judge has completed the last process serving or contracting assignment and has received payment for it (see generally Opinions 07-127; 99-80). However, if the judge thereafter solicited process- serving or electrical-contracting work from the law firm, the two-year period should run from that later date on which the judge last solicited such an assignment.

         As a result, the judge is disqualified, subject to remittal, from matters involving the law firm for two years after the process serving and contracting relationship completely ends or until the judge’s spouse’s employment ends, whichever is later. We note that during the initial two-year period, the judge has two independent bases for disqualification involving the law firm: the judge’s former process serving and contracting work and the judge’s spouse’s ongoing clerical employment. If the judge wishes to offer the parties and their counsel an opportunity to consider remittal of disqualification, both bases for disqualification must be disclosed during the initial two-year period to ensure fully informed, voluntary affirmative consent by the parties and their counsel. After this two-year period, there will be only one basis for disqualification (i.e. the judge’s spouse’s ongoing employment with the law firm).

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¹ Opinions 07-127 and 99-80 say that a judge who performs investigative work for an attorney must disqualify if they “recently” solicited work from the attorney. We modify these opinions to clarify that the two-year period runs from the latest of the three possible dates (date of last work performed, date of final payment, or date on which the judge last solicited work from the attorney).

² 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 they 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 (see Opinion 20-22; 22 NYCRR 100.3[F]).