June 18, 2020
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: Where a judge’s first-degree relative has retained litigation counsel and sued a hospital:
(1) During the litigation, the judge (a) must make full disclosure when the hospital appears before him/her, but may thereafter preside as long as he/she can be fair and impartial and no party is appearing without counsel but (b) is disqualified, subject to remittal, in matters involving an attorney who is involved in representing the judge’s first-degree relative, either directly or in a supervisory capacity;
(2) For two years after the matter terminates, the judge must make full disclosure when either the hospital or his/her relative’s former counsel appears before him/her, but may thereafter preside as long as he/she can be fair and impartial and no party is appearing without counsel;
(3) After the two-year period, the judge may preside in matters involving his/her relative’s former litigation opponent and former counsel without disclosure, provided he/she can be fair and impartial.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 20-82/20-86; 20-63; 19-110; 18-32; 16-66; 14-51; 13-132; 07-206.
The inquiring judge presides in many medical malpractice cases, including lawsuits involving a large local hospital. The judge’s first-degree relative1 has retained counsel and sued the hospital in a nearby jurisdiction for medical negligence. The judge does not know who is representing the hospital in the matter. The judge is certain he/she can be fair and impartial in matters involving the hospital and its counsel, but nonetheless requests guidance on his/her ethical obligations.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), subject to remittal where permitted (see 22 NYCRR 100.3[F]; Opinion 20-82/20-86).
We will address the judge’s obligations with respect to his/her relative’s counsel and the relative’s party opponent.
1. Relative’s Party Opponent2
Here, the judge’s first-degree relative’s party opponent is a large hospital. Both during the litigation and for two years thereafter, the judge must make full disclosure to the parties and their attorneys when the hospital appears before the judge (see Opinions 20-63; 16-66; 07-206). If, after disclosure, a party requests recusal, the judge should exercise his/her discretion in determining whether to grant or deny the request (see Opinions 20-63; 16-66). However, because disclosure is mandated in lieu of outright disqualification during this period, the judge must recuse in matters involving the hospital if any party appears without an attorney or if the judge is unwilling or unable to make full disclosure (see id.; see also Opinion 14-51).
After the two-year disclosure period, neither disclosure nor disqualification is mandated, but the judge may, in his/her sole discretion, choose to disclose or disqualify based on the relevant circumstances.
2. Relative’s Counsel
A judge is disqualified, subject to remittal, in matters involving an attorney who is currently representing the judge’s first-degree relative (see e.g. Opinions 18-32; 16-66; 13-132).3 The judge’s obligations are limited to the specific attorneys who are personally involved in the representation, whether in a direct or supervisory capacity (see id.; cf. Opinion 19-110 [describing the Committee’s“practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office]). That is, the judge need not recuse in all matters involving the law firm, provided the attorneys appearing before him/her have no involvement whatsoever in the representation.
Once the representation completely terminates, for a two-year period thereafter, full disclosure of the former representation is required (see Opinions 18-32; 16-66; 13-132). Because disclosure is required in lieu of disqualification at this stage, the judge is disqualified if a party is appearing without counsel or if the judge is unwilling or unable to disclose.
Again, after the two-year disclosure period, neither disclosure nor disqualification is mandated, but the judge may, in his/her sole discretion, choose to disclose or disqualify based on the relevant circumstances.
1 Relatives within the first degree of relationship include a parent or child of the judge or his/her spouse, or that person’s spouse.
2 The same standard would apply to the hospital’s counsel, once known.
3 As always, remittal is unavailable if any party is appearing without counsel. Remittal is a three-step process: 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.