Opinion 24-168 (Amended)
October 30, 2024
Digest: Where a Family Court judge previously headed a public defender’s office in the same county:
(1)(a) The judge is permanently disqualified, without the possibility of remittal, in cases that were pending in that office during the judge’s tenure as agency head, regardless of whether the judge had actual knowledge of or involvement in a particular case;
(1)(b) The judge is
disqualified, subject to remittal, in all cases involving individuals the judge
knows or learns were clients of the defender’s office during the judge’s tenure
as agency head for a period of two years from the earlier of (i) the date the
former client’s attorney-client relationship with the defender’s office
completely terminated or (ii) the date the judge’s employment as agency head
terminated;
(1)(c) The judge may immediately preside in newly filed cases (which do not
involve recent former clients during the applicable two-year period) if he/she
can be fair and impartial;
(1)(d) If the judge becomes aware that a newly filed case has “substantial connections” that are material and relevant to a case that was active during the judge’s tenure, 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 prior proceeding;
(2) The judge may preside in matters handled by assistant defenders he/she previously supervised, provided he/she can be fair and impartial;
(3)(a) The judge’s action as agency head in merely determining a litigant’s eligibility for representation by the defender’s office, without more, is administrative in nature and does not require disqualification; and
(3)(b) The judge’s action as agency head in merely recognizing a conflict and referring a litigant’s case to the assigned counsel panel, without more, does not generally warrant disqualification, unless the defender’s office took substantive actions on behalf of the litigant such as providing legal advice or representation before the conflict was discovered and referral was made.
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); 100.3(F); 22 NYCRR part 1200, Rules 1.7-1.8; Opinions 22-03; 21-151; 21-22(A); 20-73; 19-15; 17-169/17-170; 17-10; 16-140; 15-51; 14-10; 14-07; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquirer currently serves as the head of a specialized public defender’s office. As agency head, he/she personally represents clients, supervises all staff attorneys directly or indirectly, approves all applications for Family Court representation, and in certain instances, refers eligible applicants to the assigned counsel panel because the defender’s office has a conflict of interest. The inquirer does not engage in the private practice of law. The inquirer expects to assume judicial office as a Family Court judge in the same county and seeks guidance on his/her disqualification obligations in three scenarios:
1. When a litigant who was represented by the defender’s office, either by the inquirer personally or an attorney under his/her supervision, appears before the inquirer in Family Court;
2. When an attorney who worked under the inquirer’s supervision at the defender’s office appears before the inquirer in Family Court; and
3. When a litigant appearing before the inquirer in Family Court had been approved for representation during the inquirer’s tenure but was not represented by the office due to a conflict and was, instead, referred to the assigned counsel panel for representation.
A judge must always avoid even the appearance of impropriety and 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 also disqualify in any proceeding where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or by law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). Where the judge knows he/she previously “served as a lawyer in the matter in controversy,” disqualification is required and cannot be remitted (22 NYCRR 100.3[E][1][b][i]; see also 100.3[F]).
1. Litigants Directly Represented by the Judge and Litigants Represented by Assistant Defenders
a. Cases Pending During the Judge’s Tenure. A judge must not preside over any matter in which he/she previously participated in any way as an attorney, in a personal or supervisory capacity (see Opinion 17-169/17-170). “Even minimal involvement suffices,” and “[t]he scope of a judge’s disqualification obligations due to his/her prior employment in a government law office [is] determined by the degree of authority he/she exercised there” (id.).[1]
Here, the inquirer will be disqualified from all cases pending in the defender’s office during his/her tenure because as the official in charge under whose name and authority proceedings were conducted, the inquirer is deemed to be directly involved in each case of the office (see Opinions 22-03; 19-15; 17-169/17-170; 14-10). Disqualification on this basis is permanent and not subject to remittal, “regardless of whether the judge had actual knowledge of or involvement in a particular matter” (Opinion 17-169/17-170).
b. Recent Former Clients. Assuming the case was not pending at the defender’s office during the inquirer’s tenure, the next question is whether it involves a recent former client. Because the inquirer is the agency head, he/she will be disqualified, subject to remittal,[2] from presiding in all cases involving parties whom the inquirer recognizes as former clients of the defender’s office, or whose former representation by the defender’s office is otherwise brought to his/her attention, for two years (see Opinions 20-73; 17-169/17-170). In our view, this procedure is required because the inquirer’s impartiality might reasonably be questioned in cases involving former clients, and timely disqualification prevents any possible appearance of impropriety (see Opinions 17-169/17-170; 15-51). The two-year period runs from the earlier of (i) the date the former client’s attorney-client relationship with the defender’s office completely terminated; or (ii) the date the inquirer’s employment as agency head terminates (see Opinions 21-151; 17-169/17-170).
After the two-year period, disqualification is no longer required and it is within the inquirer’s discretion whether to disclose the prior attorney-client relationship (see Opinion 15-51). In exercising his/her discretion, the inquirer “should consider factors such as the amount of time elapsed since the last representation, the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety” (id. [internal quotation marks and citation omitted]).
c. Newly Filed Cases – Generally. In general, the inquirer may immediately preside in newly filed cases, i.e. cases that were not pending in the defender’s office during his/her tenure (and which do not involve recent former clients during the applicable two-year period), if he/she had absolutely no involvement in the case and believes he/she can be fair and impartial (see Opinions 19-15; 17-169/17-170; 14-10; 14-07).
d. Newly Filed Cases – Substantial Connections. If the inquirer becomes aware that a newly filed case before him/her has “substantial connections” that are material and relevant to a case that was active during his/her tenure in the defender’s office, the inquirer should fully disclose the connection between the two cases, as well as the nature and extent of his/her involvement in the prior proceeding (see Opinions 19-15; 17-169/17-170; 17-10; 14-10). The disclosure may be made either in writing or on the record; it is not necessary to do both. Because disclosure is mandated in lieu of disqualification, the inquirer must not preside if he/she is unwilling or not legally permitted to make full disclosure (see Opinions 19-15; 17-10; 14-10; 14-07). Otherwise, provided the inquirer can be fair and impartial, he/she may preside in the newly filed matter following full disclosure, even if a party objects (see Opinion 14-10).
2. Attorneys Who Previously Worked under the Judge at the Defender’s Office
The inquirer may preside over matters handled by assistant defenders he/she previously supervised, provided he/she can be fair and impartial (see Opinions 20-73; 17-169/17-170). As we have previously observed, “[a] lawyer’s employment in a government law office differs significantly from employment in a private law firm, in that it is unlikely to create any appearance of a financial or business relationship with his/her public sector colleagues” (Opinion 17-150). We conclude the same principle applies to attorneys in a specialized defender’s office. Accordingly, the inquirer may preside in matters involving current and former defender colleagues, provided he/she can be fair and impartial (see Opinions 20-73; 17-169/17-170). We note this is a discretionary decision within the personal conscience of the court (cf. People v Moreno, 70 NY2d 403, 405 [1987]).
3. Litigants Approved by the Inquirer as Eligible for Representation and the Referral of Eligible Litigants to the Assigned Counsel Panel due to a Conflict of Interest
a. Eligibility. The inquirer explains that litigants who wish to be represented by the defender’s office must complete an application so that the inquirer can determine if they are eligible for representation. The forms request basic personal data and contain income-based questions only; they do not invite disclosure or discussion of facts and legal issues relevant to the underlying case (cf. Opinion 16-140 [noting that a judge may consider a defendant’s written form application for assigned counsel ex parte and make a determination of financial eligibility on an ex parte basis]). The application forms are processed by clerical staff and there is no contact between an applicant and any staff attorneys or the inquirer during the application process.
On these facts, we conclude the inquirer’s determination as agency head of a litigant’s eligibility for representation is administrative in nature and does not, without more, create an attorney-client relationship that would warrant disqualification as a judge.
b. Conflict of Interest. Simply recognizing a conflict of interest and referring a case to the assigned counsel panel does not ordinarily create an attorney-client relationship that would warrant disqualification. The decision by the inquirer as agency head to refer the case elsewhere because of a conflict of interest within the office merely reflects his/her ethical obligations under the New York Rules of Professional Conduct, particularly the duty to avoid conflicts (see 22 NYCRR part 1200, Rules 1.7-1.8). Thus, we conclude that the inquirer’s prior action as agency head in merely recognizing a conflict and referring a litigant’s case to the assigned counsel panel, without more, will not ordinarily warrant disqualification as a judge.
An attorney-client relationship may arise, however, if the inquirer or his/her office took substantive actions on behalf of the litigant such as providing legal advice or representation before the conflict is discovered and referral is made. Should the judge determine that an attorney-client relationship attached, the judge should apply the principles stated above. Thus, the judge would be permanently disqualified, without the possibility of remittal, in a specific matter that was pending in the defender’s office during the judge’s tenure as agency head; and would be disqualified, subject to remittal, for two years for that former client (see Opinions 21-151; 17-169/17-170).
[1] For clarity, we note that a custody petition involving one child is not ordinarily the same “matter” or “case” as a custody petition involving another child, even within the same family. Nor is a neglect petition concerning a particular child the same “matter” or “case” as a custody petition for that child, although they may have “substantial connections” as noted in item d below (cf. Opinion 17-169/17-170 [a judge “is not forever barred from presiding over all matters involving a particular child, based solely on the fact that the child was the judge’s client in a different, unrelated case”]).
[2] As set forth in our opinions, remittal is a multi-step process that requires full disclosure on the record of the basis for disqualification and the voluntary affirmative consent of the parties and their counsel (see Opinion 21-22[A]).