Opinion 24-164
October 30, 2024
Digest: (1) A
full-time judge whose first-degree relative is an associate of a law firm:
(a) is disqualified, without the possibility of remittal, from cases in which such
relative personally appears in the courtroom and
(b) is disqualified, subject to remittal, when other attorneys from the
relative’s firm appear before the judge provided the relative remains
permanently absent from the courtroom, even if the relative is involved in the
case behind the scenes.
(2) A judge who knows he/she must disqualify in matters involving a particular law firm must do so at the outset. Thereafter, the judge’s ability to preside in any such case is dependent upon the parties’ voluntary affirmative consent to remittal in that case, where permitted, after the judge makes full disclosure of the basis for disqualification on the record.
(3) Where remittal is available, a judge may expedite the remittal process by using a written form that memorializes the basis for disqualification, provided the form (a) fully discloses all relevant facts; and (b) permits all parties and, if represented, their counsel to decide freely the judge’s participation. As long as the form is made part of the record of the proceeding, the process need not be transcribed by a court reporter.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(e); 100.3(E)(1)(e)(i)-(ii); 100.3(F); Opinions 23-231; 21-22(A); 20-82/20-86; 20-22; 19-150; 19-89; 17-150; 16-144; 16-67; 12-25; 11-43; 09-223; 06-111; 91-125.
Opinion:
A judge’s first-degree relative is an associate at a private law firm which regularly appears in the judge’s courtroom.[1] The judge asks about his/her disqualification obligations in matters where the relative and/or the relative’s firm appear.
A judge must always avoid even the appearance of impropriety and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (22 NYCRR 100.2[B]). Nor may a judge “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” unless an exception applies (22 NYCRR 100.3[B][6]). A judge must disqualify in any proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by rule or law (see id.; Judiciary Law § 14). For example, a judge must disqualify when he/she knows that a relative within the fourth degree of relationship “is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]). Further, where the judge knows the relationship to be within the second degree, (i) the judge must disqualify “without the possibility of remittal if such person personally appears in the courtroom during the proceeding or is likely to do so,” but (ii) “may permit remittal of disqualification provided such person remains permanently absent from the courtroom” (22 NYCRR 100.3[E][1][e][i]-[ii]).
1. Disqualification for First-Degree Relative’s Law Firm
Initially, we note that the inquiring judge must disqualify in all matters where his/her first-degree relative’s law firm appears (see e.g. Opinion 06-111). The only real question is whether or not remittal is available in a particular matter.
(a) Relative Personally Appears
The inquiring judge has “taken the position” that he/she must disqualify whenever the judge’s first-degree relative “is an attorney of record for a party in a proceeding before [the judge], whether by virtue of (a) appearing in person or (b) having filed papers seeking any relief in the proceeding,” but asks us to “confirm” whether this is correct.
Under the Rules Governing Judicial Conduct, the judge is disqualified, without the possibility of remittal, if his/her first-degree relative “personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]; 100.3[F]).
We typically focus on the availability of remittal “if [the judge’s relative] will not personally appear in the courtroom” (Opinion 19-150), effectively leaving it to the judge to assess the likelihood of such personal appearance. We are not in a position to assess possible variations in law firm practices as to whether an attorney whose name appears on a brief or who files papers on behalf of a law firm is always and necessarily “likely” to appear in the courtroom at any point during the proceeding.
Of course, if the judge concludes, on seeing that his/her first-degree relative is the attorney who signed and/or submitted the pleadings or motion papers, that such relative “is likely to” appear personally in the courtroom during the proceedings, then the judge will also recognize that remittal is unavailable (22 NYCRR 100.3[E][1][e][i]). In such instance, we concur that the judge should simply recuse without offering an opportunity for remittal.
(b) Other Partners and Associates Appear, But Relative Remains Permanently Absent from the Courtroom
The judge asks if he/she may “preside over cases in which the firm appears as counsel to a party in a proceeding,” when the judge’s first-degree relative has not personally appeared in the courtroom, advocated in written form in the proceeding, nor otherwise communicated with the judge concerning the proceeding.
As a general rule, where a judge’s first- or second-degree relative works for a private law firm, the judge is disqualified, subject to remittal, in all matters involving the judge’s relative’s partners and associates (see e.g. Opinions 11-43 [spouse]; 06-111 [sibling]; 91-125 [daughter-in-law]).
We have also advised that if such relative “is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available” (Opinion 17-150; see also 22 NYCRR 100.3[E][1][e][ii] [remittal permitted only if the judge’s relative “remains permanently absent from the courtroom”]).
Thus, the inquiring judge’s disqualification is
subject to remittal when other attorneys from the relative’s firm appear before
the judge, provided the relative remains permanently absent from the courtroom,
even if the relative is involved in the case behind the scenes.
2. Can Remittal in One Case Be Effective in Subsequent Cases?
The judge asks if his/her ability to preside in cases where the firm appears is “dependent upon remittal in every such case.”
Where the judge knows that a ground for disqualification exists, the judge must disqualify at the outset (see e.g. Opinions 20-82/20-86; 09-223). And the judge cannot preside in that matter until and unless all parties “who have appeared and not defaulted,” and their counsel if represented, voluntarily and affirmatively consent to remittal after full disclosure on the record of the basis for disqualification (see Opinions 23-231; 12-25; 22 NYCRR 100.3[F]). Thus, where a judge is disqualified in matters involving a particular law firm, the judge’s ability to preside in any given case where the law firm appears is dependent upon remittal in that case (see Opinions 20-22 [“Where a judge has a disqualifying conflict, it 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.”]; 20-82/20-86 [once grounds for disqualification exist, “As far as the judge is concerned, he/she is disqualified. Period.”]).
3. Can Remittal Be Accomplished By Written Forms or Filings?
In matters where remittal is available, the judge asks if remittal can be achieved “by way of written filings by the attorneys appearing in the case,” or whether the phrase “on the record” in Section 100.3(F) necessarily requires that remittal “be transcribed by a court reporter.”
As set forth in our opinions, remittal of disqualification under Section 100.3(F) is a three-step process that requires the voluntary affirmative consent of the parties and, if represented, their counsel. 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 (see Opinions 21-22[A]; 20-82/20-86; 22 NYCRR 100.3[F]). Careful compliance with these steps can help a judge avoid the appearance of “actively advocat[ing] for remittal” (Opinion 20-82/20-86).
We have acknowledged that in “a busy … court where the same attorneys appear regularly, it could well cause undue delay if the judge were forced orally to disclose the basis of the disqualification in case after case, only after the matter had been called into the record” (Opinion 20-82/20-86). We have thus advised that a judge may use a form to expedite the disclosure/remittal process, but only where the form meets the requirements of full disclosure of the basis for disqualification, consent by all parties and their attorneys, and incorporation of both disclosure and remittal into the record (see Opinions 16-67 [any system a judge adopts to expedite the remittal process “when there are ‘repeat player’ attorneys on both sides … must, at a minimum, involve full disclosure of the basis for disqualification and, especially for the institutional defender, consultation with the client”]; 19-89 [judge proposed to “memorializ[e] the remittal in written form on court letterhead where both parties can review the disclosures (outside the presence of the judge) and sign the form so that it becomes part of the record as required”]; see also Opinion 16-144 [judge may streamline remittal process by incorporating requisite disclosures and consents into the written agreement to transfer the case to veterans court]).
Accordingly, we conclude that the inquiring judge may permit disclosure and remittal through the use of a written form or filings. We reiterate that, where parties are represented by counsel, the parties’ consent is still required in addition to their attorneys’ consent (see e.g. Opinion 16-67). However, the process need not be transcribed by a court reporter, provided the form meets the requirements set forth above and there is a mechanism to make the filing part of the record.
[1] A first-degree relative includes a child or parent of the judge or the judge’s spouse, or the spouse of such a person.