Opinion 21-172

December 2, 2021

Digest:        A new full-time judge who was until recently an assistant public defender: (1) is permanently disqualified, without the possibility of remittal, from all matters in which the judge participated as an attorney, in any capacity, either personally or as a supervisor; (2) is disqualified, subject to remittal, for a period of two years, from any matter involving the judge’s former client; but (3) may otherwise immediately preside over new matters that are filed by the public defender’s office, including those where a defendant is represented by an attorney who was previously supervised by the judge, provided that the judge can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 20-73; 17-169/17-170; 17-150; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A supervising judge asks about the disqualification obligations of two newly elected judges who previously worked for the public defender’s office.¹ The judge identifies that the vast majority of representations in their court, at both the misdemeanor and felony levels, are handled by assistant public defenders. In addition, one of the newly elected judges was a supervisor responsible for the training of newly hired attorneys for the public defender’s 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]) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Thus, a judge must disqualify in any proceeding where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by law or rule (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). For example, a judge is disqualified when the judge knows that “the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]), and remittal is not available (22 NYCRR 100.3[F]; Judiciary Law § 14). Conversely, where objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).

         The principles here are well-established. In Opinion 20-73, we said 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.”

         Where a judge had any involvement as a lawyer, in a personal or supervisory capacity, we emphasize that the disqualification is not subject to remittal and does not expire (see Opinions 20-73; 17-169/17-170). Even minimal involvement suffices (see id.).

         Here, too, we conclude the judges (1) are permanently disqualified in cases in which they participated in any way as attorneys, regardless of whether such participation was in either in a personal or supervisory capacity; (2) are disqualified for two years, subject to remittal, in new cases involving former clients; and (3) may otherwise immediately preside over other matters that are filed by the public defender’s office, provided that the judge can be fair and impartial.

         We note that the judges need not disqualify from a matter merely because a former colleague from the public defender’s office appears, including a subordinate, provided they can be fair and impartial (see Opinion 17-150 [distinguishing between former colleagues in a government law office and those from a private law firm]).

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¹ The inquiring judge’s responsibilities include assigning other judges to the annual calendar, including arraignment court and disposition scheduling.