Opinion 20-98

June 18, 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:         Where a judge is being sued for acts allegedly undertaken in his/her former official capacity as a city attorney, rather than for conduct in his/her individual capacity:

(1) During the representation, the judge is disqualified, subject to remittal, from matters involving the specific city attorney(s) who are personally involved in the judge’s representation. Once the representation concludes, the judge may preside in matters involving those attorneys, provided he/she can be fair and impartial, and disclosure is entirely in his/her discretion.

(2) Both during the representation and afterward, the judge may otherwise preside in matters involving the city and other co-defendants, city employees and other witnesses, and city attorneys who have no involvement in representing the judge, provided the judge can be fair and impartial. Disclosure is within the judge’s discretion.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 20-82/20-86; 15-218; 13-41; 12-12; 10-69.

Opinion:

         The inquiring city court judge formerly served as a city attorney. The judge has now been sued in federal court, along with other individuals and the city itself. As all the claims involve conduct that allegedly occurred “during the scope of [his/her] employment,” the city will undertake the judge’s defense. The judge asks if he/she may preside in (1) cases prosecuted by the city and its attorneys or cases in which the city is a party; (2) civil cases where city employees may be witnesses; and (3) criminal cases prosecuted by the DA, where city employees may be witnesses.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), subject to remittal where permitted (see 22 NYCRR 100.3[F]; Opinion 20-82/20-86).

         In Opinion 12-12, we said a town justice who, in his/her official capacity, consulted the town attorney about “a subpoena relating to his/her judicial position” is not disqualified from presiding when the town attorney appears in his/her court once the subpoena is no longer outstanding and the representation is concluded. Because the town attorney represented the judge in his/her official capacity, rather than on a personal matter, no two-year “tail” applied (id. [citations omitted]):

[W]hen an attorney represents a judge in the judge’s official capacity, the judge is disqualified from presiding over matters in which that attorney appears, only during the course of the representation. Once the matter is concluded, as long as the judge believes he/she can be fair and impartial, the judge may preside over matters in which the attorney appears.

Likewise, when the Office of the Attorney General represents a judge in his/her official capacity, the disqualification is limited only to the specific assistant attorney general(s) who are currently representing the judge (see Opinion 10-69).

         In Opinion 13-41, we said a judge who is a defendant in federal court in his/her official capacity based on his/her prior judicial acts in a particular case may continue to preside in that case and may also preside over matters in which the judge’s federal court co-defendants or their counsel appear. In sum, as explained in Opinion 15-218 (citations, internal quotation marks and brackets omitted):

Even where the attorney or litigant sues the judge directly, where the cause of action is directed to the judge’s institutional or official role, and there does not appear to be any personal or direct financial or other economic interest on the part of the judge in the outcome of the lawsuit, the Committee has advised that disqualification is discretionary, based solely on the judge’s conscience.

         We believe the same principles apply here, where the judge is being sued in his/her former non-judicial institutional or official role, for conduct allegedly undertaken in the scope of his/her former official non-judicial duties before he/she assumed the bench. Accordingly, the judge is disqualified, subject to remittal, during the representation only, from matters involving the specific city attorney(s) who are personally involved in the judge’s representation (see Opinions 12-12; 10-69).¹ Once the representation concludes, the judge may preside in matters involving those attorneys, provided he/she can be fair and impartial, and disclosure is entirely in his/her discretion.

         The judge may otherwise preside in matters involving the city and his/her other co-defendants, as well as other matters involving city employees who are witnesses, and other city attorneys who have no involvement in representing the judge, provided the judge can be fair and impartial (see Opinion 13-41). Disclosure is within the judge’s discretion.

____________________________

¹ As always, remittal is unavailable if any party is appearing without counsel. Remittal 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.