FOR IMMEDIATE RELEASE
CONTACT: 267 Anita Aboulafia (212) -6646, ext. 225 (phone) (212) 406-9252 (fax)
NYCLA’S TASK FORCE ON JUDICIAL SELECTION’S REPORT ADDRESSES DISQUALIFICATION OF JUDGES BASED ON ECONOMIC INTEREST
June 29, 2004 – NEW YORK, NY – The New York County Lawyers’ Association (NYCLA) has released a report addressing the issue of alleged conflicts of interest among judges in New York County, The “Report of The Task Force on the Judicial Selection Subcommittee on Disqualifying Economic Interest,” which was approved by NYCLA’s Executive Committee on June 22. The report responds to the criticism that judges have failed to disqualify themselves on cases in which they (directly or through a spouse) had an alleged “conflict” due to holdings of securities of a party that is a publicly traded company, even when those holdings are minimal. The report makes specific recommendations to combat such allegations of impropriety and urges the Unified Court System to establish an Office of Conflict Counsel to assist judges in their efforts to avoid presiding over cases in which a conflict may exist.
The proposal significantly expands disclosure obligations, requiring all litigants to identify their parents and affiliates so that judges can more easily identify whether a conflict exists. Additionally, it establishes a more flexible approach in cases in which a judge has a de minimis security holding. In all cases, disclosure of an interest to the parties is required so that they may make an informed decision as to whether or not to seek recusal. NYCLA President Norman L. Reimer said, “The proposal underscores the fundamental principle that sunshine is the best disinfectant, while minimizing the risks that judges will inadvertently become ensnared in frivolous allegations of impropriety.” He continued, “It rightly imposes a duty upon the litigants to provide full disclosure of their affiliates and parents, in recognition of the modern reality of interdependent economic interest.”
NYCLA’s Task Force on Judicial Selection is co-chaired by Rosalind S. Fink and Susan B. Lindenauer, and Rita W. Warner serves as Chair of the Subcommittee on Disqualifying Interest. According to Ms. Warner, “A de minimis standard for assessing judicial disqualification recognizes that inconsequential share ownership is unrelated to actual or perceived bias, and it protects ethical and hard-working judges from undeserved criticism if they overlook an insignificant ownership interest. At the same time,” Ms. Warner continued, “both litigants and the court system must do their fair share to minimize any risk of conflict.” Summarizing one recommendation made by the Task Force, Ms. Fink said, “Party disclosure should be a substantial help to judges who now risk unfair attack for failing to identify a conflict that is not known to them when they’re first assigned a case.”
Below is a summary of the recommendations. The complete report can be found on the homepage of NYCLA’s website – www.nycla.org.
Current New York law states that regardless of the number of shares a judge owns – whether it is a single share or substantial number of shares – that judge has an “economic interest.” The report recommends modifying the definition of “economic interest” to set forth a “de minimis” rule that is already provided in the ABA Model Code of Judicial Conduct. Judges would nevertheless be required to disclose any interest. In cases of a “de minimis” interest, disqualification would not be automatic, however; a party could still seek judicial recusal.
In order to permit judges to identify cases that might raise disqualifying issues, the report recommends that at the time of filing, a plaintiff be required to file a statement disclosing any parent company or affiliate, information that is not now routinely available to judges in all case. A similar disclosure requirement would apply when appearance is made by other parties. In addition, it recommends that conflict software be installed and perfected to facilitate the process of conflict checking by judges.
The report recommends the establishment of an Office of Conflict Counsel by the Unified Court System (UCS) to ease the conflict checking process. Those judges who choose to provide their names and holdings to the Conflict Counsel would have all cases flagged by the Clerk’s office to identify any conflict(s) before cases are assigned to them.
Recognizing that judges, their spouses and any minor children in the household should not be deprived of the right to invest, the report recommends that UCS consider permitting judges to establish a so- called “blind trust,” which would shield a judge from any knowledge of his or her holdings.
The New York County Lawyers’ Association was founded in 1908 as the first major bar association in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, NYCLA has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.
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