March 19, 2020
Digest: Where an assistant public defender with no supervisory responsibilities serves on the town board that sets the town justice’s salary and the court’s budget, the town justice (1) is disqualified, subject to remittal, in all matters involving that APD but (2) may otherwise preside in cases involving the Public Defender’s office, assuming he/she can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 19-110; 17-150; 16-30; 16-28; 16-21; 12-72; 09-106; 09-20; 09-16; 94-61; 91-63; 90-175; 88-17(b)/88-34; People v Moreno, 70 NY2d 403 (1987).
An assistant public defender with no supervisory responsibilities sits on the town board, which sets the inquiring town judge’s salary and the court’s budget.1 The judge understands he/she is disqualified if that APD were to appear in the town court, whether as a private attorney, a party, or as an APD. However, the judge asks if he/she may preside in matters involving other attorneys from the Public Defender’s office.
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]). Thus, a judge must disqualify him/herself in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]). Where the objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 430 ).
A town or village justice is disqualified, subject to remittal, when a town board member or village trustee who participates in setting the judge’s salary or the court’s budget appears as a litigant or counsel (see Opinions 09-106 [although judge serves without compensation, village trustees set the village court’s budget]; 94-61; 91-63; 88-17[b]/88-34) or as a prosecutor or witness (see Opinions 16-21; 09-16; 90-175). Indeed, we said a local justice’s impartiality might reasonably be questioned when he/she must evaluate the credibility or conduct of an individual who participates in setting his/her salary or the court’s budget at the local level (see Opinion 12-72). Thus, this town justice is disqualified, subject to remittal, in all matters involving the town board member, including in his/her capacity as an APD.
As for the town board member’s colleagues at the Public Defender’s office, we note he/she does not head the office and thus is not the attorney of record in all matters (cf. Opinion 16-30 [the Public Defender, as attorney of record with supervisory authority over the entire office, is generally deemed “appearing before the judge each time an assistant public defender appears” for conflicts purposes]). Rather, the town board member is an APD with no supervising authority, who serves as a traditional trial-level attorney. Our general approach in such situations can be seen, for instance, where a judge’s first- or second-degree relative is a non-supervisory attorney in a government law office. There, if the judge’s relative is not involved in the matter personally or as a supervisor, and is not the attorney of record, the judge may preside without disclosure or disqualification in other matters involving the same office, assuming he/she can be fair and impartial (see e.g. Opinion 17-150; cf. Opinion 09-20 [while “partners and associates in a private law firm have a common financial interest” in the firm’s litigations, “that is not the case for attorneys who are colleagues in a public law office”]).
Here, too as this town board member is a non-supervisory APD, the judge may likewise preside in matters handled by other APDs and/or the Public Defender, provided the town board member APD has no involvement in the matter. The judge need not disclose the town board member’s outside employment when the Public Defender’s office appears.2
1 We recently described our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office (see Opinion 19-110).
2 As we have noted in other contexts, if “the judge is satisfied that the agency has an effective procedure in place to insulate” the town board member APD “from any cases that may come before the judge, the judge may rely on that insulation and preside in cases involving the agency without any obligation to disclose the employment relationship or inquire about [his/her] possible involvement in the case” (Opinion 16-28).