Opinion 21-151

October 28, 2021

Digest:         (1) A new part-time judge who previously represented clients as a non- supervisory assistant public defender: (a) is permanently disqualified, without the possibility of remittal, in any case where the judge previously participated as an attorney and (b) is disqualified, subject to remittal, from all matters involving their former clients, for two years after the attorney-client relationship completely ends. (2) Once the two-year period has elapsed, the judge may preside in matters involving these former clients, provided the judge had absolutely no involvement as an attorney in the specific case before the judge and assuming the judge can be fair and impartial. (3) If the judge becomes aware that a case before the judge has substantial connections that are material and relevant to a case where the judge had previously served as an assistant public defender, the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the prior proceeding, but may thereafter preside if the judge concludes they 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); 100.3(F); Opinions 21-22(A); 21-27; 20-73; 17-169/17-170; 17-150; 16-163/16-170; 16-114; 15-211; 15-126; 15-51; 14-22; 09-223.

Opinion:

 The inquiring part-time town justice was previously employed as an assistant public defender in the same county. The judge left the public defender’s office in May 2019 to take another non-judicial position, before assuming the bench earlier this year. As an assistant public defender, the judge handled family and some criminal cases, including some matters filed in the town court, but had no supervisory duties.¹ The judge asked about their obligations in civil and criminal matters in which the judge’s former public defender clients appear.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is therefore disqualified in specific circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). While disqualification is often subject to remittal after full disclosure of the basis for disqualification on the record and fully voluntary affirmative consent by the parties and their counsel, some exceptions apply (see e.g. 22 NYCRR 100.3[F]; Opinion 21-22[A]). For example, a judge must never preside in a matter if the judge knows they previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]; 100.3[F]).

         With respect to the inquiring judge’s former employment in the public defender’s office, our prior opinions recognize three broad areas of analysis.

1)      Same Case: Prior involvement as an attorney in the case before the judge

         When a former client appears in the town court, the judge must first consider whether it is a case the judge had any involvement with as an attorney. A judge may not preside in a case if “the judge knows that (i) the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14). As noted above, disqualification on this ground is not subject to remittal and does not expire (see 22 NYCRR 100.3[F]; Opinions 20-73; 17-150; 16-163/16-170; 15-211).

         Accordingly, where this judge knows they previously participated as a lawyer in a particular case in any way, including minimally, the judge is permanently disqualified from presiding in that case (see Opinion 15-211). The judge must therefore disqualify from all cases in which they had any involvement whatsoever as an attorney before assuming the bench, and must do so at the outset, as soon as the judge becomes aware of the conflict (see e.g. Opinion 09-223).

2)      Disqualification Period for Former Clients.

            With respect to other matters involving a judge’s former clients, the judge is disqualified, subject to remittal, for two years after the attorney/client relationship completely ends (see Opinion 17-150). The two-year period begins to run, in terms of private practice, when “the business and financial connection [with the former client] has finally ended” (Opinion 15-126). Because the judge worked for a public sector agency, we understand the judge would have no ongoing financial ties to any former clients once the judge ceased their employment with the public defender’s office. Thus, we conclude the two-year period started running on the date in May 2019 when the judge left the public defender’s office and ended exactly two years later in May 2021..

            As the two-year period has elapsed for all clients the judge represented during the judge’s employment as an assistant public defender, the judge has no further obligation with respect to those former clients. Accordingly, the decision of whether to disclose or recuse in such matters is confined solely to the judge’s discretion after considering all relevant factors (see Opinions 17-150; 15-51).

3)      Former Public Sector Colleagues; Substantial Connections

         Because the judge’s former clients may, when appearing in town court, be represented by the judge’s former employer and/or the judge’s former colleagues, we also address these issues. Assuming the judge is not disqualified under the first two categories, we conclude the judge may preside over other matters involving the public defender’s office, whether or not newly filed, provided the judge can be fair and impartial (see Opinions 17-169/17-170; 20-73). The mere fact that an attorney appearing before the judge was formerly the judge’s colleague in the public defender’s office is not a bar (see e.g. Opinions 14-22; 16-114 [judge may preside in matters involving a “former public sector colleague and current social acquaintance”]).

         We note, however, that if the judge becomes aware that a case before the judge “has substantial connections that are material and relevant to a case where the judge had previously served” as an assistant public defender, the judge “should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the prior proceeding” (Opinion 21-27). After doing so, the judge has full discretion to preside, even if a party objects, as long as the judge is satisfied they can be fair and impartial.