Opinion 21-22(A)

March 11, 2021

Digest:         Remittal of disqualification is a three-step process requiring full disclosure on the record of the basis for disqualification and the voluntary affirmative consent of the parties and their counsel. However, we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.

Rules:          Judiciary Law §§ 9; 14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(12); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 20-82/20-86; 20-22; 04-100.

Opinion:

         The inquiring judge, who has a remittable conflict in certain instances under Section 100.3(F), asks the following question:

“It is my understanding that..., as long as all parties are represented by counsel, they can waive any potential conflict, but if the parties are not represented, I must recuse. Is this correct?”

         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, judges must disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by specific rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). In many instances, however, the judge’s disqualification may be subject to remittal (see 22 NYCRR 100.3[F] [identifying five specific grounds for disqualification that cannot be remitted]).

         We accept the inquiring judge’s invitation to reconsider our Committee-created “pro se remittal” rule, and hereby abolish it for the reasons set forth below. We start by outlining the inherent protections of the remittal process itself, and then highlight our reasons for adopting, and now abolishing, a rule we have come to see as burdensome and unnecessary.

The Remittal Process

         Where a judge has a disqualifying conflict in a matter, but has nonetheless searched their conscience and determined that they can be completely fair and impartial and are willing to preside, the Rules Governing Judicial Conduct provide a mechanism for remittal (waiver) of disqualification (see 22 NYCRR 100.3[F] [identifying five grounds for disqualification that cannot be remitted]). In order to protect the parties and to promote public confidence in the judiciary, the remittal process is strictly construed. As we explained in Opinion 20-22 (footnote omitted):

[I]t 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, the starting point, when we say a judge “is disqualified subject to remittal” (Opinion 20-82/20-86), is that the judge is disqualified in the matter and cannot take further action, other than disclosure of the basis for disqualification, absent the voluntary affirmative consent of the parties and their counsel. As we explained (id. [citations omitted]):

As far as the judge is concerned, he/she is disqualified. Period. It is now up to the parties and their counsel to decide whether to remit that disqualification.

Remittal, where permitted, 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.

         As we emphasized in Opinion 20-82/20-86, the decision on remittal “must occur ‘without the judge’s participation’” (id. [citations omitted]). We explained that “this requirement recognizes the risk of an appearance of undue pressure or coercion if the disqualified judge actively seeks to persuade the parties to remit. A desire to preside cannot justify an undertaking to advocate in favor of remittal. The decision to remit must be made freely, willingly, and without coercion, in full knowledge of the relevant facts” (id.).

The “Pro Se Remittal” Rule

         With this backdrop, we now turn to our “pro se remittal” rule. For at least 15 years, we have consistently prohibited remittal of disqualification when any party is appearing without counsel, although we seldom articulated any policy reasons underlying the prohibition. One of the few times we sought to justify it, we said it was based on our sense that it “would be inappropriate to impose upon a pro se defendant the burden of determining whether to consent to the judge’s continued participation under the remittal procedures of section 100.3(F)” (Opinion 04-100).¹

         On further consideration and deliberation, and in light of significant changes in the past few years, we believe this Committee-imposed restriction is both unnecessary and unduly burdensome to the unrepresented litigants themselves, to their adversaries, and to the overall administration of justice.

         In 2015, the rules were amended to expressly permit judges to “make reasonable efforts to facilitate the ability of unrepresented litigants to have their matters fairly heard” (22 NYCRR 100.3[B][12]). We presume this provision was intended to allow judges greater discretion, within the ethical bounds of integrity, impartiality, fairness and independence, to accommodate the unique individualized needs of unrepresented litigants.

         In contrast, our “pro se remittal” rule, by design, removes a judge’s discretion when a party is unrepresented. Where a judge with a remittable conflict has searched their conscience and ascertained that they can be fair and impartial in a particular matter, has fully disclosed the basis for disqualification, and all those who have appeared and not defaulted in the matter freely and affirmatively request the judge to preside in full knowledge of the conflict, the judge ordinarily has discretion to accept remittal of disqualification and preside in the case. But if any party is appearing without counsel, our rule requires the judge to disqualify from the matter, regardless of all other considerations, even if the parties are present, fully informed about the conflict, and anxious to go forward. In such circumstances, our rule is likely to delay resolution of the matter, may require additional appearances and expenses, and may financially impact the parties. The administrative burden, especially in courts where many litigants are unrepresented, is high, as administrative and supervising judges must replace judges who have remittable conflicts but are prohibited from offering or accepting remittal of disqualification simply because an unrepresented litigant is participating.

         Although significant advances have been made to provide counsel to every defendant at arraignment, we note that significant burdens remain in the criminal context. For example, if a judge serving in the centralized arraignment part learns of a conflict with the assistant public defender on duty, the defendant may need to be held longer in police custody while either an alternative arraigning judge or other defense counsel is found. Or, where a criminal case has been transferred to a new judge post-arraignment, and the judge becomes aware of a remittable conflict, the judge is immediately disqualified if the defendant is appearing without counsel at that stage (or is represented by defense counsel whose presence causes a conflict for the judge). Again, in such circumstances, the defendant’s liberty interests may be negatively affected. Ironically, these issues may potentially be exacerbated in light of bail reform initiatives, since bail can no longer be set in other than specified serious offenses and would have effectuated the defendant’s post-arraignment, required release on recognizance sooner rather than later, had the judge been permitted to offer an opportunity to remit disqualification.

         Finally, we note that unrepresented litigants are trusted to make other substantial decisions about their legal rights (e.g. whether to waive a jury trial or even the right to counsel), and we see no reason why they cannot also make a decision about whether or not to waive a conflict that the judge has fully disclosed to them. Again, we emphasize that the rigorous remittal process itself provides many protections, first by placing the burden on the judge to (1) search their conscience and determine that they can, in fact, be fair and impartial and (2) make full and sufficient disclosure, and then by placing the power of decision solely in the hands of the parties and, if represented, their counsel.

         Thus, we conclude that judges should be vested with discretion, consistent with the spirit of Section 100.3(B)(12), as to whether to offer the parties the opportunity to consider remittal, notwithstanding that one or more parties are appearing without counsel. We emphasize that such discretion works in both directions. That is, a conflicted judge may still, in their sole discretion, simply recuse in a matter involving unrepresented litigants rather than offering an opportunity for remittal, even if the judge believes they could be fair and impartial.² Moreover, a judge also has full discretion to adopt any procedures they may deem necessary or advisable in a particular matter, including but not limited to asking questions to satisfy themselves that an unrepresented litigant’s consent is knowing and uncoerced, before accepting remittal of disqualification.

         All prior opinions prohibiting remittal of disqualification where a party is appearing without counsel are hereby amended consistent with this opinion.³

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¹ We have also framed it as an exceptionally close reading of the text of Section 100.3(F) (see Opinion 20-22 fn 3), although that reading is only one of several possible good-faith interpretations of the text.

² A judge might wish to do so, for example, if they conclude that the full disclosure required for voluntary affirmative consent would involve disclosure of personal, embarrassing, and/or sensitive information that they do not wish to share with an unrepresented litigant. We note, in this regard, that Judiciary Law § 9 does not, on its face, appear to mandate a particular level of disclosure, and also does not require disclosure where “the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.”

³ As a corollary to our “pro se remittal” rule, we have said that where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification, a judge may not preside if any party is appearing without counsel. In abolishing the “pro se remittal” rule, we also abolish this follow-on requirement.