Opinion 23-107
September 7, 2023
Digest: (1) A judge who previously served as General Counsel to the District Attorney is disqualified from presiding over any matter that the judge knows he/she was personally involved in or supervised in any way as an attorney, even minimally.
(2) Sealing applications pursuant to Criminal Procedure Law 160.59, violations of probation, parole recognizance hearings, and Sex Offender Registration Act hearings are deemed a continuation of the original case for ethics purposes.
(3) Otherwise, the judge ordinarily has no obligation based on the judge’s prior employment with the District Attorney’s office unless the judge (a) determines that a case before the judge has substantial connections with a matter the judge was involved with at the District Attorney’s office and (b) also concludes that the prior matter is “materially relevant” to the pending case. If those conditions are met, the judge must fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the former proceeding. Thereafter, the judge may preside if the judge can be fair and impartial, even if an attorney or party objects. If disclosure is impracticable in the judge’s court, the judge should disqualify in these matters.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i); 100.3(F); Opinions 23-71; 22-185; 22-166; 22-118; 22-73; 20-43; 20-20; 18-172; 17-162; 15-211; 14-10; 14-07; 07-30; 97-08.
Opinion:
The inquiring judge formerly served as General Counsel in a District Attorney’s office over a decade ago. In this role, the judge had no involvement in or direct supervisory responsibilities over the day-to-day management of cases from the trial divisions and appeals bureau. Instead, the judge’s role involved special projects, hiring, liaison with outside agencies, guidance on defined broader legal issues, and consultation on select cases at the behest of the District Attorney or arising from the appeals bureau.[1] The judge now serves on a court with appellate jurisdiction. While the judge recognizes that disqualification is required in any appeal where the judge knows that he/she personally participated in or supervised the underlying criminal case (or an earlier appeal) as an attorney, the judge asks for guidance about participating in appeals from other matters that may have been investigated or prosecuted by the District Attorney’s office during the judge’s former tenure as General Counsel.
A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must disqualify in a proceeding whenever the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]), including in instances when specifically required by law or rule. If the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]), the judge is permanently disqualified from the matter, without the possibility of remittal (see 22 NYCRR 100.3[F]; cf. Judiciary Law § 14 [a judge “shall not sit as such in, or take part in the decision of, an action, claim, matter, motion or proceeding … in which [he/she] has been attorney or counsel”]).
The scope of a judge’s disqualification obligations due to prior employment in a government law office is “determined by the degree of authority he/she exercised there” (Opinion 15-211). Judges who served as the District Attorney are disqualified from all matters investigated or prosecuted by the office during their tenure as District Attorney regardless of whether the inquiring judge “had actual knowledge of or involvement in a particular matter” because the District Attorney is “the official in charge and under whose authority proceedings were conducted” (Opinion 20-20). This includes certain ancillary or collateral proceedings such as “probation violation hearings, Sex Offender Registration Act Hearings, and judicial hearings on alleged parole violations where the underlying offense was prosecuted during his/her term as the District Attorney” (Opinions 22-118 [parole recognizance hearings]; 17-162 [motion to seal conviction]). We have found that such proceedings “are essentially a continuation of the original case for ethics purposes” (Opinion 20-20).
Likewise, “where the judge had a prominent, high-level position with wide supervisory authority, disqualification may be quite broad” (Opinion 18-172). For example, where a judge was the former deputy bureau chief of the Tort Division of the Corporation Counsel’s office with general supervisory authority over all tort cases, we required recusal for all tort cases pending in the county office at that time (see Opinion 97-08). Similarly, where a judge served in a high-ranking supervisory position in the county attorney’s office and frequently represented a county agency in neglect and abuse proceedings, either personally or through assistant county attorneys under his/her supervision, that judge was disqualified from presiding over any proceedings commenced or prosecuted during the judge’s employment and remittal was unavailable (see Opinion 14-07).
By contrast, where a judge had more limited supervisory duties as a government attorney, or none at all, we have said that broad disqualification as to all matters commenced in that government office during the judge’s employment is not warranted (see Opinion 15-211). Thus, a former ADA with a limited supervisory role “is disqualified from any matter in which he/she participated in any way, including minimally, as a prosecutor or as a supervising attorney,” but not from other matters in which the judge had absolutely no involvement (id.).
In sum, where a judge was not the head of the agency or the attorney of record, our analysis focuses on the judge’s role and responsibilities within the chain of command, rather than the judge’s exact title. In Opinion 20-43, we concluded that a judge who was the former head of a DSS legal department as the senior social services attorney need not recuse from all cases pending during the judge’s tenure there, but rather was disqualified from only those cases in which the judge and the legal department participated. There were matters within the DSS in which the legal department “had no involvement whatsoever” (Opinion 20-43). We concluded the judge was “not ultimately responsible for the actions for those in the entire agency, as the official in charge, such as a police chief or a district attorney or high-ranking county attorney” (id.). Similarly in Opinion 18-172, a part-time judge who previously served as the Chief Assistant District Attorney needed to recuse from only those cases with which the judge was involved either directly or in a supervisory capacity, since in that county the District Attorney personally exercised exclusive supervisory authority over all ten ADAs and personally made all determinations on office plea policies (see Opinion 18-172).
Application and Analysis
Here, while the title of General Counsel “ordinarily implies a high-level supervisory position,” the inquiring judge’s role as described is more limited and defined (see Opinion 18-172). First, the inquiring judge ordinarily had no supervisory role or other involvement in cases at the trial level. Any direct involvement in a particular case was at the specific direction of the District Attorney and the inquiring judge indicates that those cases can be identified. Second, the inquiring judge was consulted, in what could be described as a supervisory role, on approximately forty appeals. Given this relatively limited role, we conclude the judge need not disqualify from all matters that were pending in the office at the time of his/her tenure. Indeed, “given the passage of time, it is highly unlikely” that cases that were tried or appealed a decade ago would now be pending before the judge’s court (cf. Opinion 07-30). Nonetheless, the judge must disqualify from any matter in which the judge is aware that he/she participated in any way, including minimally, while serving as General Counsel (see Opinions 18-172; 20-43).
For the purposes of determining whether an appeal now before the judge’s court is part of the “same case” as a matter pending during the judge’s former employment with the DA’s office, thus warranting disqualification if the judge knows he/she had any involvement in the matter whatsoever as an attorney, the judge should take note of the four special scenarios we have deemed to be “essentially a continuation of the original case for ethics purposes” (see Opinions 22-118; 17-162; 20-20). Thus, if the judge knows that he/she had any personal involvement as General Counsel with the prosecution or appeal of the underlying criminal offense, the judge may not participate as a judge in an appeal concerning the defendant’s subsequent (a) application to seal the criminal conviction pursuant to CPL 160.59 (see Opinion 17-162); (b) violation of probation hearing (see Opinion 20-20); (c) SORA hearing (see id.); or (d) parole recognizance hearing (see Opinion 22-118). Rather, in such instances, the judge is disqualified.
Materially Relevant Connections
We expect that the judge will be able to preside in appeals from the vast majority of criminal cases first investigated, charged, or prosecuted by the District Attorney’s office in the years since the judge’s departure, as well as many criminal cases or appeals that may have been handled by that office during the judge’s tenure as General Counsel without any participation by the judge. Disqualification is not ordinarily required in matters involving the District Attorney’s office except as set forth above.
In some instances, however, it is possible that the judge may conclude that a particular appeal nonetheless has “substantial connections that are material and relevant” with a criminal matter the judge participated in as General Counsel (cf. Opinion 23-71). As described in Opinion 14-10:
if the inquiring judge … concludes the facts and circumstances of the prior criminal matter are materially relevant to the [appeal] before the judge, the Committee believes the judge should fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the criminal proceeding, in writing or on the record.
In deciding if he/she can be fair and impartial in the [appeal], the judge should consider such factors as: the nature and extent of the judge’s involvement in the criminal proceeding; whether the judge is aware of relevant and material non-public information about the litigant due to his/her prior employment; and whether the judge will be able to decide the [appeal] based solely on the [appellate record] and the permissible arguments and considerations presented in the proceeding before the judge. Even if a party then objects, the judge may sit as long as he/she concludes he/she can be fair and impartial in the present proceeding (see generally People v Moreno, 70 NY2d 403 [1987]).
If the judge determines that disclosure in a particular appeal is mandatory under this standard, then the judge must either make the ethically mandated disclosure or disqualify him/herself from the appeal. However, after making the requisite disclosure, the judge may preside, even if an attorney or party objects (see e.g. Opinion 22-73). We note that, where disclosure is mandated, if disclosure is impracticable in the judge’s court, the judge must disqualify.[2]
General Reminder Concerning Knowledge of Conflicts
We also take the occasion to reiterate our remarks in Opinion 22-166 (citations and paragraph break omitted) as a general reminder:
We have advised that while a judge need not undertake extraordinary measures, they “must adopt reasonable procedures” to avoid conflicts. However, even where a judge has adopted such reasonable procedures, there may be times when a judge has nonetheless inadvertently presided over a matter where recusal would have been appropriate. The judge’s obligations in such circumstances depend on the facts presented.
[1] The judge can easily identify the few trial cases he/she consulted on as General Counsel, but is less certain about identifying the roughly 40 appeals.
[2] We do not know if it is feasible in the judge’s court to make the requisite disclosure “at a suitable point in the appeal, whether in writing or from the bench” (Opinion 22-73; cf. Opinion 22-185 [where a judge “learns during the course of the proceedings, or even during trial” about a conflict that requires disclosure in lieu of disqualification, we have said that making “full disclosure on the record is sufficient” on becoming aware of the connection]).