Opinion 21-41

April 29, 2021

Digest:         A judge, whose spouse had brought a now-settled personal injury action on behalf of their minor child against a city municipality and its education agency must make full disclosure in cases where the municipality or any of its agencies is a party for two years from the date the court signs the settlement order. However, the judge need not disclose in mental hygiene hearings where a city hospital is represented exclusively by outside counsel.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 21-23; 21-22(A): 20-63; 16-88; 14-51; 14-11; 08-171/08-174.

Opinion:

         The inquiring judge’s spouse, on behalf of their infant child, sued their local municipality and its department of education for personal injuries to the child. These government entities were initially represented by the then-Corporation Counsel (now retired), and subsequently by an assistant corporation counsel. The matter has now been settled. The judge notes multiple dates relevant to the settlement, including (a) the hearing or conference date when “court electronic markings ... indicate that the case was settled for a specific dollar amount,” (b) the date the infant compromise order and accompanying documents were electronically filed, (c) the date when the infant compromise hearing was held and the infant compromise order was signed, and (d) the date the infant compromise order was electronically filed.¹ The judge now asks about their post-settlement obligations. In particular, the judge asks if it is necessary to disclose or recuse in cases where “the City or an agency” is a party and whether the judge’s obligations are different if a party is appearing without counsel. The judge asks how long the obligation should continue and, if disclosure is required, how extensive the disclosure must be. The judge also specifically asks about obligations with respect to “(1) general civil cases, and (2) a mental hygiene case, where the City (or the City hospital) is represented by outside counsel (not the Corporation Counsel).”

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify when “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specific circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Unless otherwise provided, disqualification is subject to remittal (see 22 NYCRR 100.3[F]).

         As summarized in Opinion 20-63, the general rule “when a judge or a relative within the second degree of relationship (sibling or closer) by blood or marriage is a party litigant” in their individual capacity is as follows [emphasis and footnotes omitted]:

         •        The judge’s obligation during the litigation is to disqualify him/herself from matters when the judge knows that a party or attorney appearing before him/her is currently the judge’s (or the relative’s) party-opponent or opposing counsel. The disqualification is subject to remittal as permitted by the Rules and our prior opinions.

         •        Thereafter, once the litigation is concluded, for two years, the judge must at least disclose the prior litigation when the judge knows that a party or attorney appearing before him/her was the judge’s (or the relative’s) party-opponent or opposing counsel within the past two years. Because this disclosure is mandated in lieu of outright disqualification, the judge must disqualify him/herself if any party is appearing without counsel in the matter before him/her.

         •        After this two-year period, the judge ordinarily has no further obligation, provided he/she can be fair and impartial, and thus need not disclose or recuse.

         Where the judge’s first-degree relative’s litigation adversaries are the municipality and its department of education, we said the judge’s disqualification and disclosure obligations “are limited to those specific named entities, and do not apply to other municipal agencies or departments” (Opinion 21-23).

         Moreover, where those government entity litigation adversaries were represented by an assistant corporation counsel, the judge’s obligations ordinarily extend only to the specific attorneys personally involved in the litigation, as opposed to the entire law office (see id.; see also Opinions 16-88; 14-51; 14-11). Thus, for example, a judge who has sued the Public Defender in his/her individual and official capacities is disqualified, subject to remittal, in matters where the Public Defender personally appears, but may preside in matters where the Assistant Public Defenders appear, provided the judge believes they can be fair and impartial (see Opinions 21-23; 14-11).

Post-Settlement Obligations in Matters Involving Former Litigation Adversaries (the City or its Education Agency)

         The judge must disclose the former litigation for two years in all matters involving the judge’s spouse’s former party opponents, i.e. the municipality or its education agency (see Opinions 21-23; 20-63), as well as the specific assistant corporation counsel(s) involved in the litigation (see id.). As we have abolished the “pro se remittal” rule, disclosure is sufficient even if a party is unrepresented (see Opinion 21-22[A] fn 3).

         The two-year period commences once the court signs the settlement order (see Opinion 20-63). Thus, the judge may deem the litigation terminated as of the date the infant compromise order was signed.

         Where, as here, we require disclosure in lieu of outright disqualification, the conflict must be fully disclosed. After full disclosure, the judge has discretion concerning whether to preside, even if a party objects. Even though the judge need not obtain the parties’ consent to preside, the judge should nonetheless strive to provide information that will allow the parties and their attorneys to “intelligently determine” whether to object to the judge presiding over the matter (Opinion 08-171/08-174). As the disclosure involves a relative’s prior civil litigation, we believe that full disclosure should ordinarily include information such as:

         (1) The degree of relationship between the judge and their relative;

         (2) The role of the attorney or party appearing before the judge in the prior civil litigation;

         (3) The nature of the claim asserted in the litigation against the municipality and its education agency;

         (4) The nature and extent of the judge’s personal involvement in the case, if any; and

         (5) Information concerning the disposition of the case. To the extent applicable, the judge should share their understanding of the nature of the settlement, including the approximate amount of any payment(s) made by the city or the education agency, the year in which judgment was entered, and whether any additional or collateral proceedings are pending or impending.

Post-Settlement Obligations in Matters Involving Other City Agencies

         Clearly, the judge’s spouse did not sue every municipal agency or department, but only named two entities: the city and its department of education. On further consideration, we believe that, at least where the city itself is a named litigation adversary of the judge or the judge’s second-degree relative, it is inappropriate to limit the judge’s disqualification and disclosure obligations as we did in Opinion 21-23. Accordingly, we now overrule Opinion 21-23 to the extent that we said the judge’s disqualification and disclosure obligations “are limited to those specific named entities, and do not apply to other municipal agencies or departments” (Opinion 21-23), when the city itself is one of the named entities. Instead, we believe the judge should follow the same principles when other city agencies, including city hospitals, are named parties, even though the judge’s spouse only sued the city and its education department. Thus, the judge must make the same disclosure for two years for all city agencies. However, the judge need not disclose in mental hygiene hearings where a city hospital is represented exclusively by outside counsel.

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¹ Approximately 10 months elapsed between the first and last of these dates.