Opinion 20-36

March 19, 2020

Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).

Digest:         A judge need not disqualify him/herself from issuing a decision in a small claims matter merely because his/her first-degree relative, a non-lawyer, independently applied for employment with the sole law firm that appeared at the small claims hearing.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 17-74; 15-05; 14-155; 05-35/10-74; 99-87; 98-26; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge completed a small claims hearing in which only one party retained counsel. Coincidentally, after the hearing, the judge’s first-degree relative, a non-lawyer, applied for employment with that law firm as a paralegal.¹ Both the relative’s job application and the decision are still pending. The judge asks if he/she must disclose or disqualify him/herself from the matter.

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

         When a judge applies for post-judicial employment with a law firm, he/she must disqualify him/herself in matters involving the law firm while the application is pending (see Opinion 05-35/10-74). The present scenario, however, does not raise the same concerns. While a judge’s own pending employment application raises reasonable questions about his/her impartiality in matters where the prospective employer appears, we believe a first-degree relative’s pending employment application does not, without more, create any objectively reasonable basis to question the judge’s impartiality or otherwise create any appearance of impropriety. Nor does the inquiry reveal any basis for mandatory disqualification (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). Thus, the judge “is the sole arbiter of recusal,” and this “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         If the judge concludes he/she cannot remain fair and impartial, the judge must disqualify him/herself (see Opinion 98-26). Conversely, if the judge decides he/she can be fair and impartial and can decide the matter solely on the admissible evidence proffered at the hearing, the judge may preside. The judge need not disclose the circumstance, but may do so in his/her sole discretion as a prophylactic measure, even when one of the parties is appearing without counsel (see Opinions 17-74; 15-05).

         If the law firm ultimately hires the judge’s first-degree relative as a paralegal, the judge is disqualified in matters involving that law firm, although the disqualification may be subject to remittal in appropriate circumstances (see e.g. Opinions 14-155; 99-87).

_____________________________

¹ Relatives within the first degree of relationship include a parent or child of the judge or his/her spouse, or the spouse of such person.