Opinion 21-16(B)

January 28, 2021

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 is disqualified, subject to remittal, from matters involving an attorney who joined a highly publicized and controversial lawsuit challenging certain employment actions taken by the judge’s close relative.

(2) The judge may preside in matters involving the attorney’s new colleagues at an unrelated government law office, provided the judge can be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 20-98; 20-22; 17-05; 16-57; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge’s close relative¹ is a public official who allegedly took actions in their official capacity adversely affecting the employment of certain individuals. One affected individual has joined a lawsuit challenging these actions, but has also gone on to obtain employment with an unrelated government law office that appears before the inquiring judge.² We note that, while the lawsuit names the judge’s relative solely in their official capacity, it is also highly publicized and extremely controversial. The judge says they can be fair and impartial in all matters involving the government law office and its client, but asks if they must nonetheless disclose or disqualify from matters involving the attorney and/or the government law office.

         A judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must therefore disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         In our view, the judge need not disclose or recuse in matters involving the government law office or its clients. We believe the judge’s impartiality cannot “reasonably be questioned” with regard to the attorney’s new employer and new colleagues, who have no involvement in the lawsuit against the judge’s relative and no cognizable interest in its outcome (see Opinions 20-98; 16-57; 22 NYCRR 100.3[E][1]). Accordingly, the judge may preside in matters involving the attorney’s new colleagues at the government law office, provided the judge can be fair and impartial. This “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         With respect to the attorney who is the judge’s relative’s party opponent, however, different considerations apply. We often distinguish between lawsuits in which a judge is a litigant in a personal or fiduciary capacity from those in which they are involved in a strictly official capacity (see e.g. Opinions 20-98; 17-05). Here, however, in light of the extremely high-profile and controversial allegations, we believe the judge must disqualify in matters involving their relative’s litigation opponent (i.e. the attorney) during the pendency of the lawsuit and for two years thereafter (see Opinion 16-57). The disqualification is subject to remittal, but only if all parties are represented by counsel.

         For ease of reference, we also provide some detailed reminders about disqualification and remittal. As we noted in Opinion 20-22 (footnote omitted):

Where a judge has a disqualifying conflict, it is not the parties’ burden to request the judge’s disqualification. Rather, it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern. Moreover, where remittal is available, it is a multi-step process which likewise puts the burden on the judge (1) to make full disclosure of the basis for disqualification on the record and (2) not to preside unless the parties and their counsel freely and affirmatively consent to waive the conflict as specified in Section 100.3(F) and our prior opinions. Again, mere failure to object is insufficient.

Thus, for two years after the litigation terminates, the inquiring judge must disqualify from all cases in which the attorney appears. However, provided the judge is confident they can be fair and impartial and no party is appearing without counsel, the judge “may offer the parties an opportunity to consider remitting disqualification, should they choose to do so” (id.). The judge must ensure that all elements of remittal are satisfied, before taking any judicial action in a case involving this attorney. We repeat the basic three-step process as summarized in Opinion 20-22 (citation 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.

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¹ The connection is within the second degree of relationship (i.e. sibling or closer) by blood or marriage.

² We refer to the individual who sued the judge’s relative as “the attorney,” and their new employer (which has no involvement in the lawsuit) as “the government law office.”