Opinion 20-73

April 30, 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:         A full-time judge who formerly worked for the Legal Aid Society (1) is permanently disqualified in cases in which he/she participated in any way as an attorney, whether in a personal or supervisory capacity and (2) is disqualified for two years, subject to remittal, in cases involving his/her former clients. The judge may otherwise preside in criminal cases, including those in which his/her former colleagues appear, provided he/she can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); Opinions 20-22; 19-110; 17-169/17-170; 17-150; 17-100; 16-36; 15-211; 11-26; 92-14; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A new full-time judge asks if he/she may hear criminal cases. The judge formerly served as a senior counsel for a Legal Aid Society. Over the course of his/her career with the Society, the judge at times supervised up to a dozen attorneys, although he/she has had no supervisory responsibilities in the past two years.¹ The judge handled felony cases in many trial courts (but excluding the court in which he/she now serves), from initial arraignment to conclusion by, for example, plea or trial if a case was reduced to a misdemeanor-level offense.

         A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must also disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), including when the judge knows he/she previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]).

         As noted in Opinion 17-169/17-170 (citations omitted):

A judge must disqualify him/herself from any matter in which he/she had any involvement as a lawyer. The disqualification is not subject to remittal and does not expire.

Thus, this judge must disqualify him/herself and may not preside over any matter in which he/she participated in any way, in a personal or supervisory capacity, while employed with the Legal Aid Society, without the possibility of remittal (see Opinions 17-169/17-170; 17-150; 92-14). Even minimal involvement suffices (see Opinions 17-169/17-170; 17-150).

         As explained in Opinion 17-150 (citations omitted), “[a] lawyer’s employment in a government law office differs significantly from employment in a private law firm, in that it is unlikely to create any appearance of a financial or business relationship with his/her public sector colleagues.” We believe there is likewise no such appearance for attorneys of a not-for-profit Legal Aid Society. Accordingly, the judge may preside in matters involving former Legal Aid Society colleagues, provided he/she can be fair and impartial (see Opinions 17-150; 15-211).

         A judge is also disqualified, subject to remittal, from presiding in any matters involving former clients for two years after representation of the former client ends or any outstanding fees are paid, whichever is later (see Opinion 17-150). The same rule applies for public defender (institutional) clients (see Opinion 17-100). However, disqualification is required only if the judge recognizes a party as a former client or if such former representation is otherwise brought to the judge’s attention (see Opinions 17-150; 16-36).

         We also believe the judge’s impartiality cannot be reasonably questioned in matters involving prosecutors who may have been the judge’s professional adversaries in his/her former role as a Legal Aid Society attorney (cf. Opinion 11-26 [noting that “former prosecutors who become judges may preside over criminal matters”]). Accordingly, the judge may preside if he/she can be fair and impartial, a matter left to his/her sole discretion (see People v Moreno, 70 NY2d 403 [1987]).

         Accordingly, we conclude this judge (1) is permanently disqualified in cases in which he/she participated in any way as an attorney, whether in a personal or supervisory capacity, and (2) is disqualified for two years, subject to remittal, in cases involving his/her former clients.² The judge may otherwise preside in criminal cases, including those in which his/her former colleagues appear, provided he/she can be fair and impartial.

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¹ Opinion 19-110 describes our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office.

² As noted in Opinion 20-22, “remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record.” Where available, remittal is a three-step process (id. [citations omitted]):

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.

We have cautioned that “mere failure to object is insufficient” (id.).