Opinion 21-85

June 17, 2021

Digest:       Among other requirements, remittal of a judge’s disqualification requires on-the-record, individual and specific consent by all parties that have appeared and not defaulted. Where the purpose of the proceeding is to determine if a party has the capacity to make decisions on their own behalf, a judge who has a remittable conflict must disqualify without offering an opportunity for remittal unless the judge determines that the attorney has the legal standing to consent to remittal on behalf of the alleged incapacitated party.

Rules:        Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 22 NYCRR 101.1; Opinion 21-22(A).

Opinion:

           The inquiring judge has a remittable conflict that arises in matters where an attorney has been appointed by the court for a party that is apparently under a legal disability (e.g. a guardian ad litem or an attorney for the alleged incapacitated person in an Article 81 setting). The judge asks whether and how disqualification may be remitted in those circumstances, where the purpose of the proceedings is to determine if the party has physical, age and/or cognitive functional limitations, including the capacity to make decisions on their own behalf.

           A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a matter that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Accordingly, a judge is disqualified in any proceeding where the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]) or where specifically required by rule or law. Section 100.3(F), which governs remittal of disqualification, says:

A judge disqualified by the terms of subdivision (E), except subparagraph (1)(a)(i), subparagraph (1)(b)(i) or (iii), or subparagraph (1)(d)(i) or subparagraph (1)(e)(i) of this section, may disclose on the record the basis of the judge’s disqualification. If, following such disclosure of any basis for disqualification, the parties who have appeared and not defaulted and their lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding.

         We have recognized that, where permitted, remittal is a three-step process (see e.g. Opinion 21-22[A]). For the second step, “the parties who have appeared and not defaulted and their lawyers” must “all agree” that the judge should not be disqualified (id.; 22 NYCRR 100.3[F]).

         Given that the purpose of the proceeding in question is to determine if a party has physical, age and/or cognitive functional limitations, including the capacity to make decisions on their own behalf, it would be inconsistent with the very nature of that proceeding for a judge to determine, pre-hearing, that the party has the capacity to knowingly consent to a remittal of disqualification as required by the Rules Governing Judicial Conduct.

         Since Section 100.3(F) calls for each non-defaulting party’s on-the-record, individual and specific consent to the remittal, we conclude that, unless the judge determines that the attorney has the legal standing to consent to remittal on behalf of the alleged incapacitated person, a party who is subject to a proceeding to determine if that party has the capacity to make decisions on his/her own behalf cannot be subjected to such a decision and therefore the judge must disqualify without offering an opportunity for remittal.

         Whether or not an attorney can legally consent to remittal on behalf of an alleged incapacitated person is a legal question, which is beyond our jurisdiction (see generally 22 NYCRR 101.1; Judiciary Law § 212[2][l]).