Opinion 24-61

March 14, 2024

Digest: (1) A judge who previously served as bureau chief in a district attorney’s office is disqualified from all matters pending in the bureau during the judge’s tenure as chief.

            (2) If the judge is unsure whether a case was pending in the judge’s bureau during his/her tenure as bureau chief, the judge should make a limited inquiry of the parties.

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 23-107; 21-05; 15-211; 14-07.

Opinion:

          The inquiring judge previously held the position of bureau chief in a district attorney’s office.  In that capacity, the judge personally handled criminal prosecutions, supervised others, and screened and assigned thousands of cases.  The judge asks (1) what degree of familiarity with a case requires disqualification, and (2) whether the judge has an affirmative duty to investigate these potential conflicts.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must disqualify in a proceeding whenever the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).  Where a judge knows that he/she “served as a lawyer in the matter in controversy,” the disqualification is not subject to remittal (see 22 NYCRR 100.3[E][1][b][i]; 100.3[F]; see also Judiciary Law § 14 [“A judge shall not sit as such in, or take any part in the decision of, an action, claim, matter, motion or proceeding … in which [the judge] has been attorney or counsel.”]).

Disqualification

          We have advised that a judge who previously served in a supervisory role in a district attorney’s office is disqualified not only from the cases the judge handled personally, but also from “any matter that the judge knows he/she was personally involved in or supervised in any way as an attorney, even minimally” (Opinion 23-107; see also Opinion 21-05 [judge who entered single appearance as prosecutor must disqualify]).  We have explained that disqualification on this basis is “not limited to matters where the judge provided significant legal advice and/or direction” (Opinion 15-211 [internal quotation marks omitted]).  To the contrary, “even ‘minimal involvement’ suffices” (id.).

          Here, the judge served as bureau chief in the district attorney’s office, personally handled criminal prosecutions, and screened and assigned thousands of cases.  Even the process of “screening” a criminal case and assigning it to another assistant district attorney in the bureau warrants disqualification, as the case presumably remained under the judge’s general supervision.

Duty to Investigate

          Consistent with the principles above, in Opinion 14-07 (quotation and citations omitted), we reiterated that:

in light of the judge’s duties as a high-ranking deputy county attorney, it would be highly unlikely that the judge could clearly identify all matters involving various county agencies, in which the judge personally participated while serving in the County Attorney’s office.  Thus, to avoid the possibility of the judge presiding in such instances, we advise that the judge disqualify him/herself in any matter which was pending in the County Attorney’s office while the judge was serving.

Accordingly, we conclude the inquiring judge’s obligation does not depend on the judge’s recollection of the defendant or the facts of the matter, but on the fact that it was pending in the judge’s bureau during the judge’s tenure as bureau chief. 

          While judges “need not undertake extraordinary measures, they ‘must adopt reasonable procedures’ to avoid conflicts” (Opinion 23-107 [citation omitted]).  Thus, if the inquiring judge cannot readily determine whether a particular case was pending in the bureau during the judge’s tenure, whether from the subject matter or by other reasonable means, he/she should make a simple, limited inquiry of the parties.