March 19, 2020
Digest: Where a judge’s first-degree attorney relative works for the private law office of an ADA who appears in the judge’s court, the judge (1) need not disclose or disqualify when the ADA appears as an ADA but (2) is otherwise disqualified, subject to remittal, whenever attorneys from the ADA’s private practice appear before him/her.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); 100.3(E)(1)(e)(i)-(ii); 100.3(F); Opinions 16-163/16-170; 11-43; 08-200; 06-111; 91-125; 87-03; People v Moreno, 70 NY2d 403 (1987).
A judge’s first-degree relative,1 an attorney, is employed by the private law practice of an assistant district attorney (“ADA”) who regularly appears in the judge’s court. The judge’s relative works “in the areas of estates and trusts, family law and real estate” and is supervised by another attorney at the practice. He/she has no involvement in matters over which the judge presides and does not appear before him/her. Indeed, the ADA’s private law office “does not handle any criminal matters.” The judge asks if he/she may preside in matters where the relative’s employer appears as an ADA.
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]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), including where the judge knows that a person within the fourth degree of relationship to him/her is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][e]). Where disqualification is not mandated, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ), and thus may preside, unless he/she doubts his/her own impartiality in the case.
The general rule is that where a judge’s first- or second-degree relative works for a private law firm, the judge is disqualified, subject to remittal, in all matters involving the judge’s relative’s partners and associates (see e.g. Opinions 11-43 [spouse]; 06-111 [sibling]; 91-125 [daughter-in-law]; 87-03 [sibling]).
But where a judge’s relative’s partner or associate is also a government lawyer in a public law office, a different rule applies when he/she appears in his/her entirely distinct and separate capacity on behalf of the government, rather than on behalf of the law firm. In Opinion 08-200, a judge’s spouse was an associate in an assistant public defender’s private law practice. We said the judge need not disqualify nor disclose his/her spouse’s professional association when the APD appears in his/her governmental capacity as an APD in the judge’s court (see Opinion 08-200). We noted the judge’s spouse would “not share in the fees his/her employer earns in his/her capacity as an assistant public defender” and “will handle only civil matters” at the APD’s private law firm (id.).
Here, too, assuming the judge can be fair and impartial, he/she may preside in matters where the ADA appears as an ADA and need not disclose his/her first-degree relative’s employment in the ADA’s private law practice.
However, the judge must disqualify, subject to remittal, if any attorney from the practice appears as a private practitioner. Remittal cannot take place without full disclosure and the affirmative consent of all parties and their counsel. As summarized in Opinion 16-163/16-170 (citations omitted):
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.
For completeness, we note the judge’s disqualification is not ordinarily subject to remittal if his/her first-degree relative is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][e][i]-[ii]; 100.3[F]).
1 For conflicts purposes, first-degree relatives include a parent or child of the judge or his/her spouse, or the spouse of that parent or child.