March 19, 2020
Digest: A judge who headed the DSS legal department as the senior social services attorney is disqualified from all cases in which the judge participated, however minimally, either directly or as a supervisor, at any stage. However, the judge may preside over other cases pending at DSS during his/her tenure, if both the judge and the legal department had absolutely no involvement in the matter.
Rules: FCA § 1034; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(b)(i); Opinions 19-110; 19-01; 18-131; 15-211; 15-172; 14-172; 14-10; 07-10; 99-11; 95-86(A); 92-14.
The inquiring full-time judge previously headed the legal department at the department of social services, but did not head the agency itself.1 Thus, while the judge had supervisory responsibility over legal staff, he/she had no involvement with other matters undertaken by non-legal staff unless and until the legal department became involved. For example, where a family court judge ordered DSS to conduct a child protective investigation and to report its findings to the court (FCA § 1034), the inquirer would not supervise the investigators or investigations generating the 1034 reports, but the head of the child protective unit might later direct the legal department to prepare and file petitions alleging child abuse or neglect. Accordingly, the judge would like guidance on his/her obligations with respect to cases that were “pending” at DSS during his/her tenure but were handled exclusively by DSS staff outside the legal department.
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]). A judge must disqualify him/herself in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including when the judge “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][a][ii]) or “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][b][i]). Where the judge served as a lawyer in the matter, remittal is not available (see 22 NYCRR 100.3[F]).
1. Matters in Which the Legal department Had Absolutely No Involvement
The judge first asks if he/she may preside over matters that were pending at DSS during his/her employment there, but in which the legal department had no involvement whatsoever. For example, we understand DSS non-legal staff might undertake FCA 1034 investigations, child protective services investigations, provision of voluntary services, persons in needs of supervision (PINS) diversion, juvenile delinquency cases where the child was placed in the custody of the DSS commissioner, and other such matters, without any involvement by or discussion with the legal department or the judge.
A judge’s disqualification obligations due to his/her prior employment in a government law office are determined by the degree of authority he/she exercised there (see Opinion 15-211). We note the inquirer was not in a position to be ultimately responsible for the actions for those in the entire agency, as the official in charge, such as a police chief (see Opinion 18-131) or a district attorney (see Opinions 15-172; 14-10), or high ranking county attorney (see Opinion 14-172), which would require disqualification in all cases and matters pending at DSS the time the judge was employed there (id.). However, this judge effectively headed the legal department and supervised all the other social services attorneys.
Where a case before the judge involves a DSS investigation or other action over which the judge had absolutely no knowledge, involvement, or supervisory authority - no matter how “minimal” (see Opinion 15-211) - we believe the judge’s impartiality cannot reasonably be questioned. Thus, the judge may preside in matters that were pending at DSS during his/her tenure, if both the judge and the legal department had absolutely no involvement in the matter whatsoever at any stage.
2. Matters in Which the Legal department Had Minimal Involvement
Next, the judge asks if he/she may preside in matters that were pending at DSS during his/her tenure, but over which, according to the inquirer, the legal department had no “meaningful involvement.” In some instances, the inquirer was aware of DSS’s investigation reports because he/she was copied by the investigating caseworker, and the inquirer then read these reports. In other instances, the judge attended placement meetings at which non-legal personnel discussed the appropriate placement (foster care or agency residential facility, for example) of a subject child before filing any persons in need of supervision (PINS) or juvenile delinquency petitions in court. At times, the judge gave opinions on pending matters, when asked, usually as to whether there was enough evidence to file appropriate petitions.
As to matters in which the judge provided legal opinions, even at the investigatory stage and without any other involvement, the judge must disqualify him/herself. Providing such legal opinions or advice constitutes, in our view, “personal participation” in the matter as an attorney requiring disqualification (see Opinions 95-86[A]; 92-14; 22 NYCRR 100.3[E][b][i]). Remittal is not available (see 22 NYCRR 100.3[F]).
As to matters where a caseworker emailed a report to the judge, the judge advises that he/she “routinely” read those reports and attended placement meetings. The rules specifically require disqualification in “proceedings in which the judge’s impartiality might reasonably be questioned” or where “the judge has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][i][a][ii]). Thus, when prior government employment results in knowledge about a specific matter in controversy, disqualification is required (see Opinions 19-01; 07-10). Even if it could be argued that, in the strictest sense, the inquirer did not acquire personal knowledge of any disputed facts by reading caseworkers’ reports or attending placement meetings, nonetheless, “[e]ven if the judge does not, in fact, have such personal knowledge, the appearance of personal knowledge might reasonably cause the judge’s impartiality to be questioned” (Opinion 07-10). Moreover, the judge was presumably invited to attend the placement meetings in his/her capacity as an attorney, thus creating at least an appearance that he/she “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][b][i]). Again, “even ‘minimal’ involvement suffices” (Opinion 15-211).
Consequently, the judge must disqualify him/herself from all matters in which the judge provided legal opinions, reviewed a caseworker’s report, or attended placement meetings, notwithstanding the judge’s belief that his/her involvement was routine or minimal.
From a practical perspective, unless the inquiring judge can clearly identify and segregate matters in which he/she participated or provided legal opinions from those in which he/she did not, we advise the judge to disqualify him/herself from those matters pending at DSS while the judge was employed there as a supervising attorney (see Opinion 99-11).
1 We take a “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office (see Opinion 19-110). While the judge did not have a title such as “department head,” we understand he/she had supervisory responsibility over all matters involving the legal department in his/her capacity as the most senior social services attorney.