Opinion 24-83

 

May 9, 2024

 

Digest:  (1) Once the justices of a town court have reported an assistant public defender to the attorney grievance committee, they must disqualify in all cases where the reported attorney personally appears.

            (2) With respect to pending cases where the reported attorney had previously appeared on behalf of a defendant in the town court, the judges must also disqualify, even if such cases may be reassigned to another assistant public defender. 
(3) Where the reported attorney previously represented a defendant solely in the centralized arraignment part before another local judge and a different assistant public defender appears before the town court for post-arraignment proceedings, the judges are not disqualified based on the reported attorney’s prior involvement unless it becomes necessary to revisit some aspect of the arraignment.  Opinion 19-154 is modified to reflect this opinion.

            (4) These obligations last during the pendency of the disciplinary complaint and for two years thereafter, and remittal is not permitted. 

 

Rules:   Judiciary Law §§ 9; 212(1)(w); 22 NYCRR 100.1; 100.2(A); 100.3(E)(1); Opinions 21-86; 20-151; 20-67; 19-154; 19-93; 18-84; 16-146; 06-19/06-29.

 

Opinion:

 

          The judges of a town court are preparing to report two assistant public defenders to the attorney grievance committee and wish to clarify the scope of their disqualification obligations after making the report.  In particular, where one of the reported attorneys previously appeared on a case, either in the town court or before another local judge in the centralized arraignment part, the judges ask if they may thereafter preside in that case as long as it is handled by one of the other assistant public defenders.

 

          A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and must always act to promote public confidence in its integrity and impartiality (see 22 NYCRR 100.2[A]).  Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

 

          After a judge has filed a disciplinary complaint against an attorney, the judge must disqualify in all cases involving that attorney during the pendency of the complaint and for two years after its resolution (see e.g. Opinions 20-151; 20-67; 16-146).  This disqualification is not subject to remittal unless the attorney grievance committee imposes public discipline, or the reported attorney waives confidentiality.[1]

 

          However, a judge is not necessarily disqualified from all cases in which the reported attorney’s colleagues appear.  To the contrary, if a judge believes those colleagues were not involved in the misconduct and is satisfied that he/she can be fair and impartial, the judge may preside (see e.g. Opinions 20-151; 20-67; 16-146; 06-19/06-29).

 

          The question is what the inquiring judges should do when one of the reported attorneys, although not physically present in the town court, had some prior involvement in a particular case, either in the town court or before another local judge in the centralized arraignment part.  In effect, may the judges preside in a case where a reported attorney previously appeared, if another assistant public defender is subsequently assigned to handle the matter in the town court?  Although we previously addressed similar issues in Opinions 18-84, 19-93 and 19-154, we now reconsider our prior conclusions and their applicability here.

 

Prior Appearance by a Reported Attorney in the Town Court

 

          In Opinion 18-84, we concluded that a judge must disqualify from a case based on the prior involvement of a law firm that represents the judge and his/her family, even though the party retained new counsel before the matter came before the judge.  We reasoned that even though the law firm was no longer representing the party, the firm had “prepared and submitted a motion now pending and awaiting decision” (id.).  We noted that “the motion may be considered and may result in granting or denying the relief sought” and that “[a]n attorney’s prior submissions in a case could potentially result in contempt, sanctions or malpractice claims, even after he/she has ceased involvement in the matter” (id.).

 

          We also reached a similar result in Opinion 19-93.  Where the judge is currently disqualified, subject to remittal, in matters involving a particular attorney due to their former attorney/client relationship, we advised that the judge “has the same obligation in cases where that attorney, although not physically present, may have previously appeared per diem in the case or is likely to appear per diem in that case in the future” (id.).  

 

          Here, with respect to cases in which one of the reported attorneys has previously appeared in the town court before any of the inquiring judges, we conclude that this remains the appropriate approach and the judges should disqualify themselves from all such cases without regard to the possibility that other assistant public defenders may be assigned to cover them going forward.  This bright-line rule avoids even the appearance of impropriety due to the reported attorney’s prior involvement in the matter before the judge, without individualized consideration of whether the judges might need to review, consider, or act on the reported attorney’s prior arguments or submissions.

 

          As the disqualification is not subject to remittal, the judges may wish to consult with their district administrative office for assistance.

 

Prior Appearance by a Reported Attorney in the Centralized Arraignment Part

 

          In Opinion 19-154, where a judge had a conflict with the entire public defender’s office, we advised that the judge “is disqualified in cases transferred from the centralized arraignment part where the public defender’s office represented the defendant” before another local judge, even though the defendant “is now represented by a conflict defender or an 18-B attorney” for post-arraignment proceedings (id.).  We noted that the judge “may need to decide issues such as release status or conditions, which the public defender’s office may have argued at arraignment” (id.).  In most instances, we noted, the disqualification would be subject to remittal after full disclosure on the record.  But where the judge had a non-remittable conflict with the specific assistant public defender who handled the arraignment, we advised that the disqualification still could not be remitted when the matter was transferred to the town court, notwithstanding that the defendant would be represented by new counsel with no connection to the judge.

 

          On further consideration, we conclude this rule is unnecessarily restrictive.  We understand the centralized arraignment part is intended to “facilitate the availability of public defenders or assigned counsel for defendants” in light of the exigencies of off-hours arraignments (Judiciary Law § 212[1][w]).  The presiding judge is authorized to arraign a defendant, take a plea, and set a securing order.  Thereafter, the matter is transferred to the proper court and handled in the ordinary course.  This post-arraignment transfer also gives the defense side a routine opportunity to reassign the matter to whichever assistant public defender(s) would ordinarily handle the case in that local court, or to make other desired adjustments.

 

          Thus, in our view, when a defendant’s arraignment was handled by another local judge in the centralized arraignment part and has been transferred to the town court for post-arraignment proceedings, the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) merely because the defendant was previously represented at arraignment by a different attorney.  Absent other grounds for disqualification, and assuming the current parties and counsel do not create a conflict for the judge, we conclude that a judge may preside in a matter transferred from the centralized arraignment part, notwithstanding that defendant’s counsel at arraignment would have created a conflict for the judge, unless it is necessary to revisit some aspect of the arraignment.  We therefore modify Opinion 19-154 as necessary to be consistent with this view.

 

          Here, the inquiring judges will have a non-remittable conflict with two specific assistant public defenders, but no conflict with the rest of the public defender’s office.  Accordingly, where a defendant was represented by that public defender’s office in the centralized arraignment part before another local judge, the inquiring judges may ordinarily preside in the matter when it is transferred to the town court for post-arraignment proceedings, even if one of the reported attorneys handled the matter at arraignment, as long as they do not have a conflict with the attorney who appears in the town court post-arraignment. 

 

            However, if it becomes necessary to revisit some aspect of the proceedings in the centralized arraignment part when the reported attorney appeared, the inquiring judges must at that point disqualify themselves from the case, and again, remittal is not permitted.

 


[1] “[W]hat the judge must state … pursuant to Judiciary Law § 9, when confidentiality has not been waived, is a legal question we cannot address” (Opinion 21-86).