Opinion 23-71
June 15, 2023
Digest: A support magistrate who previously served as the supervising attorney at the Department of Social Services may handle child support cases filed after the magistrate’s departure from the agency, provided there is no substantial connection between the circumstances underlying the prior proceeding and the facts and legal issues presently before the magistrate. If such connection exists, disclosure or disqualification is required.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.6(A); Opinions 22-22(B); 20-43; 19-15; 17-150; 17-10; 14-07.
Opinion:
The inquiring support magistrate previously served as the supervising attorney at the Department of Social Services (DSS or the Department) in the county where the support magistrate now serves. In that role, the inquirer supervised other attorneys and legal support staff on all child support, child protective, adult protective, and parental rights termination matters, and personally appeared in child protective cases and some support cases. The inquirer now asks if it is ethically permissible to handle new child support cases, filed after their departure from DSS, with particular attention to scenarios where (a) DSS or its Support Collection Unit was previously a party to a support matter involving the same parties or (b) the parties were previously respondents on a child protective case and either the inquirer or an attorney under the inquirer’s supervision personally appeared on the matter.
A quasi-judicial official must “comply with” the Rules Governing Judicial Conduct “in the performance of their judicial functions” and must otherwise “so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]). Accordingly, a support magistrate 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]). A support magistrate must also disqualify in any proceeding in which their impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]), including when the magistrate knows they previously served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]).
Clearly, the magistrate is permanently disqualified, without the possibility of remittal, from all cases where the magistrate had any involvement as an attorney, directly or in a supervisory capacity, whether or not the magistrate personally appeared on the matter (see 22 NYCRR 100.3[E][1][b][i]; Opinions 20-43; 17-10). Indeed, we said that a judge who previously served, by contract, as the principal attorney for DSS is disqualified from “cases that were pending in that office during the judge’s tenure, regardless of whether the judge had actual knowledge of or involvement in a particular matter” (Opinion 19-15). Likewise, where a judge previously headed the in-house DSS legal department, we noted that even “routine or minimal” involvement by the judge or the legal department in a particular case during the judge’s tenure would require permanent disqualification in that case (Opinion 20-43).
Here, however, the inquirer asks about various scenarios involving newly filed child support matters that involve parties who were also involved in prior proceedings pending during the inquirer’s tenure with DSS. In each instance, the answer depends on whether there is a substantial connection between the circumstances underlying the prior proceeding and the matter presently before the support magistrate.
(1) No Substantial Connection
The magistrate may handle new child support cases filed subsequent to their departure, even if DSS and/or its Support Collection Unit was previously a party to a support matter involving the same parties, provided there is no substantial connection between the circumstances underlying the prior proceeding and the matter presently before the magistrate (see Opinion 19-15 [judge who was previously the principal attorney for DSS “may immediately preside in newly filed DSS cases, even when handled by former contract attorneys the judge previously supervised, provided (i) the new case has no substantial connection with a case pending during the judge’s prior tenure and (ii) the judge can be fair and impartial”]).[1]
The same analysis applies if the magistrate appeared or supervised an attorney who appeared on a child protective case involving the same respondents. If the new case has no substantial connection with a case pending during the judge’s tenure, the judge may preside, provided the judge can be fair and impartial.
(2) Material and Relevant Connections
Where a newly filed case has substantial connections that are material and relevant with a case that was pending during the magistrate’s tenure with DSS, the magistrate must disclose the connection between the two cases as well as the nature and extent of their involvement in the prior proceeding (see Opinion 19-15). This may be done in writing or on the record (see Opinion 14-07).
In addition, the support magistrate must determine whether they can be fair and impartial in the new support case by considering such factors as the nature and extent of the magistrate’s involvement in the prior proceeding; whether the magistrate is aware of relevant and material non-public information about the litigant due to their prior employment with DSS; and whether the magistrate will be able to decide the new support case based solely on the admissible evidence and the permissible arguments and considerations presented in the proceeding before the magistrate (see Opinion 14-07).
If the magistrate is unable or unwilling to make the ethically mandated disclosure, disqualification is required (see Opinion 17-10). Likewise, the magistrate must not preside if they doubt their own ability to be fair and impartial in the matter.
[1] In this regard, we distinguish between prior public sector employment and prior employment in a private law firm (see e.g. Opinions 22-22[B]; 17-150).