New York County Lawyers’ Association comments on proposed Part 151 of the Rules of the Chief Administrator of the Courts (Part 151 Rule).

April 28, 2011

Hon. Jonathan Lippman

Chief Judge of the Court of Appeals

230 Park Avenue, Ste. 826

New York, NY 10169

Dear Chief Judge Lippman:

On behalf of the New York County Lawyers’ Association (NYCLA), I am pleased to submit comments on proposed Part 151 of the Rules of the Chief Administrator of the Courts (Part 151 Rule). As was noted in the February 15, 2011 issue of the New York Law Journal, my initial response to the proposal’s announcement was that the proposed Part 151 Rule was “… a bold and innovative step and…should help to restore confidence in the judiciary.” NYCLA continues to subscribe to that statement.

The Part 151 Rule issued by the Office of Court Administration (OCA) seeks to improve public confidence in judicial independence and impartiality by establishing a per se recusal rule that prohibits a judge from presiding over a case where an attorney or a party contributed $2500 or more individually or $3500 collectively to the judge’s campaign for elective office within two years prior to the assignment of the case to the judge.

NYCLA supports the overall concept contained in the Part 151 Rule. Its adoption will further the goal of improving public confidence in the impartiality and fairness of the judiciary. NYCLA was founded more than 100 years ago as a bar association open to all New York lawyers with a strong commitment to the highest standards of the profession. Fundamental to that commitment has been support for a strong, independent and impartial judiciary.

In 2004, NYCLA established a Task Force on Judicial Selection (Task Force) with a broad mandate to look at all aspects of judicial selection and related issues that affect the strength and independence of the judicial process. In a report entitled, The Roadmap to Reform (Roadmap), the Task Force reiterated NYCLA’s long-standing support for an appointive system of selecting judges and, at the same time, recognizing that the election of some judges was likely to continue in New York, made recommendations regarding steps that can and should be taken to increase the openness and fairness of the overall process for the election of judges. That earlier work informs the three comments that follow that are aimed at clarifying and strengthening the proposed Part 151 Rule without making it an administratively unworkable rule.

The Part 151 Rule Should Not Supplant the Need for Additional Disclosure or Existing Ethical Duties of Judges and Litigants

NYCLA believes that the recommendations in the Roadmap are deserving of careful consideration by the Legislature and by other groups involved in judicial elections. Consistent with its emphasis on openness and disclosure, the Roadmap incorporated a prior recommendation made by the Task Force that there be a requirement that contributors of $500 or more to the election campaign of a judge before whom a lawyer appears be disclosed by the lawyer. NYCLA continues to support and advocate this disclosure requirement in addition to the per se recusal rule proposed. NYCLA believes that adoption of such a disclosure role would supplement the proposed per se recusal rule in a manner that would further ensure fairness and the appearance of fairness and therefore strengthen public confidence in the judicial system.

In the process of considering the Part 151 Rule, NYCLA had an informative and productive meeting with OCA. It is our understanding that in drafting the Part 151 Rule, a conscious decision was made not to extend the per se recusal rule beyond contributions made by the lawyer appearing in a case ($2500) or collectively by the lawyer and his or her firm ($3500), both to ease administrative oversight and to limit the potential constitutional issue of overbroad application. However, the Part 151 Rule makes specific reference to the Rules of Judicial Conduct, Section 100.3E(1) and 100.3E(2) as they relate to the “ready public availability of records of campaign contributions” and the effect that information may have “upon public perceptions of judicial neutrality.” Section 100.3E(1) addresses judicial self-disqualification in a proceeding where the judge’s impartiality may reasonably be questioned, and Section 100.3E(2) requires that a judge be informed about his or her personal and fiduciary economic interests and the economic interests of the judge’s spouse and minor children in the household. The implication of this cross-referencing appears to be that the judge’s obligations under the Rules of Judicial Conduct remain in place and must be considered by the judge even when automatic recusal does not occur. As with a disclosure obligation, NYCLA does not believe that the proposed per se recusal rule is intended to, or should, eliminate the need to comply with existing rules and ethical duties. Even where a case does not meet the tests for non-assignment, there are cases where recusal or disclosure would be required or prudent. NYCLA suggests that the oblique reference to these Rules be made clearer and stronger. We also recognize that there may be a need to consider a clarifying amendment to the Rules of Judicial Conduct.

The Rule Should Deal More Clearly with the Anticipated Exceptions to the System of Automatic Non-Assignment of Cases

As proposed, the Part 151 Rule does not require judges or lawyers to engage in the screening effort. That would be undertaken by OCA, which would, on a quarterly basis, review Board of Elections’ records of judicial campaign committees to determine the applicability of the Part 151 Rule to specific judges, based upon contributions made to a judicial campaign by a lawyer or law firm. It is contemplated that based upon the review of the filed campaign committee records, a case would not be assigned to a judge where the per se recusal rule would apply.

It is our understanding that the Part 151 Rule would not be applicable to all cases, particularly those requiring expedited action or cases in which there were no other judges available, such as certain types of Family Court cases or long motion calendars in Civil Court (“an emergency, or as dictated by the rule of necessity, or where the interests of justice otherwise require…”). NYCLA suggests that the provisions in the Part 151 Rule with regard to the types of situations where recusal would not be required need further clarification, either by expanding the general language or by providing specific examples.

A Method for Waiving Application of the Rule Is an Essential Safeguard to Prevent Unintended and Counter-Productive Consequences

Beyond these observations, NYCLA believes that there should be a procedure available where an adverse party or his or her lawyer can waive application of automatic non-assignment and recusal of a particular judge or group of judges. Without such a waiver process, it would be possible for a lawyer or law firm to “game the system” by disqualifying a particular judge or group of judges from hearing cases involving that firm or lawyer for two years through the simple device of a relatively modest, pretextual campaign contribution. This form of negative judge-shopping would be terribly unfair to other litigants, absent a mechanism allowing them to opt out of the per se non-assignment and recusal of judges they believe would preside over their cases fairly, efficiently and competently without being swayed by the fact of a campaign contribution made only to disqualify them. If the NYCLA recommendation that lawyers be required to disclose campaign contributions of $500 or more were to be adopted, the establishment of a waiver process would not be difficult to accomplish. Given the budgetary crisis in the court system, placing the burden on the bar to disclose may be the wiser course.

Even if our suggestion for additional disclosure is not adopted, it should be administratively feasible and not overly burdensome to affected attorneys to be able to designate confidentially to court personnel other than the judges on a periodic basis those judges to whom they do not wish per se non-assignment of cases and recusal to apply. This seems to NYCLA and its members an essential safeguard to mitigate unintended consequences of any system of non-assignment and per se recusal. We also believe that consideration should be given to developing methods to prevent lawyers from gaming the system and would be happy to work with representatives of the courts and other bar associations to craft and present appropriate language for that purpose through court or disciplinary rules or otherwise.

Again, we commend the development of the Part 151 Rule and the vision behind it. We hope that our suggestions will help to make an excellent proposal even stronger.

Sincerely,