Opinion 11-95

September 15, 2011

Please Note: This opinion has been modified by Opinion 14-60 with respect to when the disqualification should end. As stated in Opinion 14-60: “The appellate process alone may take months or even years, depending on the issues involved, and a criminal defendant’s sentence may, in some cases, last longer than an entire legal or judicial career. Where, as here, disqualification is required only for the specific attorney(s) who are personally involved in the prosecution, the Committee believes that such disqualification should end with the entry of judgment. Accordingly, Opinion 11-95 is modified to reflect this view.”

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         For two years following resolution of criminal charges against a judge’s child, the judge must disclose the prior prosecution of his/her child when a prosecutor who was personally involved in the matter appears before the judge, but the judge may preside provided that all parties are represented by counsel and the judge can be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 11-127; 11-26; 10-168; 10-99; 10-56; 09-42; Joint Opinion 08-171/08-174; Opinions 08-165; 07-128; 00-68 (Vol. XIX); 99-47 (Vol. XVII); 97-15 (Vol. XV); 92-60 (Vol. IX); 92-31 (Vol. IX).

Opinion:

         An administrative judge states that a trial judge’s child has been arraigned by the local district attorney’s office and that the trial judge has been temporarily reassigned so that he/she will not preside over any criminal matters prosecuted by that same office while the criminal charges against the judge’s child are pending. The administrative judge thus asks whether the trial judge may preside over matters prosecuted by the local district attorney’s office after the judge’s child’s criminal case has concluded.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge shall disqualify him/herself in a proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that a judge is disqualified, subject to remittal, unless a party appears without counsel (see Opinion 11-127), when an attorney who presently represents the judge’s child appears before the judge (see e.g. Opinions 08-165 [public defender’s office defending judge’s child in a criminal matter]; 97-15 [Vol. XV] [attorney defending judge’s child in juvenile delinquency proceeding]; 92-60 [Vol. IX] [private attorney defending judge’s child in a traffic violation matter in another court]). In the Committee’s view, the same standard applies when a district attorney’s office is prosecuting the judge’s child in a criminal matter.

         After the criminal charges against the judge’s child are completely resolved (that is, after there is a final judgment of acquittal or dismissal or, if there is a guilty plea or other finding of guilt, after the defendant has fulfilled any sentence imposed and appeals, if any, have been concluded), the judge is no longer disqualified from hearing matters in which the district attorney’s office appears, as long as the judge can be fair and impartial (see e.g. Opinions 10-168 [once attorney’s representation of judge’s spouse ends, disqualification not mandated provided “judge can be fair and impartial”]; 00-68 [Vol. XIX] [where attorney previously represented judge’s child or sibling, no obligation to recuse “provided that the judge is confident of his/her ability to be impartial”]; Opinion 92-31 [Vol. IX] [judge may preside over a matter involving attorney who previously represented judge's adult child in misdemeanor case, “provided the judge believes that he or she can be impartial”];¹ see also generally Opinion 11-26 [judge who cannot be impartial concerning an issue must disqualify him/herself, and remittal is not available]).

         However, the judge must disclose the prior prosecution of his/her child for the two year period just mentioned when the local District Attorney him/herself appears before the judge or a staff member appears who was involved in prosecuting the judge’s child (see Opinion 08-165 [for a period of two years after Public Defender ceases to represent judge’s child, judge must, in any case where Public Defender him/herself appears or a staff member appears who was involved in representing judge’s child, disclose that such representation occurred]; see also e.g. Opinions 10-168 [two-year disclosure rule applies for attorney who previously represented judge's spouse]; 07-128 [two-year disclosure rule applies for attorney who previously represented judge’s child]; 00-68 [Vol. XIX] [two-year disclosure rule applies for attorney who previously represented judge’s child or sibling]; 99-47 [Vol. XVII] [two-year disclosure rule applies for law firm that previously represented judge’s spouse]). If, following such disclosure, a party objects to the judge’s continued participation in the matter, the judge may nevertheless preside if the judge believes that he/she can be impartial (see Opinion 08-165).

         Because disclosure is mandatory during the two-year period following the resolution of the criminal charges against the judge’s child, the judge must disqualify him/herself if any party is appearing pro se (see Opinion 11-127).²

         After two years, the judge may, but need not, disclose the prosecution when the prosecutors who were involved in the matter appear before the judge, and disqualification is not required as long as the judge can be fair and impartial (see e.g. Opinions 09-42; 11-127).

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     ¹To the extent that Opinion 92-31 (Vol. IX) appears to advise that disclosure is required more than two years after the prior representation has completely concluded, the Committee believes this portion of the Opinion has been abrogated by subsequent Opinions which have consistently articulated a two-year limit for disclosure that an attorney previously represented a close relative of the judge (see e.g. Opinions 07-128; 00-68 [Vol. XIX]; 99-47 [Vol. XVII]). Beyond the two-year mark, the judge may, but need not, disclose the prior representation (see id.). The Committee notes that a different rule applies when an attorney who represented the judge or the judge’s party-opponent against the judge appears before the judge (see Opinions 10-99; 10-56; Joint Opinion 08-171/08-174).

     ²During the two-year period following resolution of the criminal charges against the judge’s child, if the judge does not wish to make full disclosure, then the judge must disqualify him/herself from matters in which the attorneys who were personally involved in the prosecution appear.