Digest:  Under all the circumstances, a part-time city court lawyer-judge should recuse himself or herself in matters involving a law firm, where (1) the law firm had represented a party in a matter before a town judge in which the inquiring judge represented an opposing party; and (2) at the time of the proceeding before the town judge, the law firm was also representing the judge in a separate matter; and (3) based upon that fact, the judge's client in the matter before the town judge has made a complaint of judicial misconduct to the State Commission on Judicial Conduct, which complaint the inquiring judge helped to draft; and (4) the law firm is representing the town judge before the State Commission on Judicial Conduct. Such recusal should last for a period of two years following disposition of the matter before the Commission.
 

Rule:  22 NYCRR 100.2; 100.3(E)(F);
           Opinion 92-40 (Vol. IX);
           Jud. Law 44 (4), (5), (7), 45.
 
 

Opinion:

            The inquiring judge, a part-time judge in a city court, also is engaged in the private practice of law. One of the judge's largest clients, while being represented by the inquirer, was a party to a civil action before a town justice in a nearby township. The case was featured on the front page of the local paper on more than one occasion. After the proceedings, the inquiring judge's client filed a complaint of judicial misconduct against the town justice with the State Commission on Judicial Conduct on the ground that the law firm on the other side was at the same time representing the town justice in a controversial matter before several public agencies. The inquiring judge believed that the complaint had merit and helped the client to draft it. The town justice, who is not a lawyer, has retained the same law firm to represent him/her before the Commission on Judicial Conduct. That law firm appears before the inquirer in approximately one percent of the cases in his/her court, in both civil and criminal matters.

            The inquiring judge asks what action to take when the law firm appears before him/her.

            Pursuant to section 100.3(E)(1) of the Rules Governing Judicial Conduct, a judge must disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Section 100.2 of the Rules also requires a judge to avoid the appearance of impropriety and to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

            The question presented is whether on the totality of reported facts the city court judge's impartiality may reasonably be questioned, in any case in which the law firm appears.

            In Opinion 92-40 (Vol. IX), this Committee determined that a part-time judge who is also a practicing attorney need not recuse himself or herself from presiding over a criminal matter in which the defendant was represented by an attorney who was an opposing attorney to the judge in an unrelated action in another court. The Committee found that "[n]o reasonable basis exists to question the impartiality of the part-time judge. The dual role of the part-time attorney-judge is not unique" (id.). Thus, there is no per se rule requiring recusal when a previous legal adversary appears before the judge.

            But, in that Opinion the Committee also stated that, "[i]f some additional element or complication relating to the other court action or the relationship between the judge and the attorney leads the judge to believe that he or she cannot be impartial in the proceeding, or that his or her impartiality might reasonably be questioned, then the judge should disqualify himself or herself. Absent such circumstances, however, the judge need not recuse himself or herself from the proceeding" (id.).

            In our view, the present matter involves such an "additional element or complication." The inquiring judge would be presiding over a case in which one of the parties would be represented by a firm that previously opposed the inquiring judge in a significant case and could be viewed as a potential adversary of the inquiring judge's important client in a pending investigation of a town justice initiated by the client, with the judge's help. Further, that complaint resulted from a hotly contested action that received considerable publicity in the locality. And, most significantly, that complaint is predicated upon an allegation that the law firm was representing the town justice in a matter at the same time it was appearing before him/her as an adversary of the inquiring judge.

            Accordingly, on the basis of all the facts and circumstances presented, it is the opinion of the Committee that the judge should exercise recusal, sua sponte, whenever the law firm appears in a proceeding before the judge, so as to avoid even the appearance of impropriety. We believe that recusal is mandated for a two-year period following the final disposition of the matter before the Commission and should not be subject to remittal under section 100.3(F) of the Rules.

            Finally, whether the judge can reveal the basis of the recusal, given the confidential nature of complaints before the Commission under Judiciary Law 44(4), (5), (7) and 45, without obtaining a waiver from the town judge, presents a legal question that the Committee declines to address. But, the Committee is also of the opinion that, in virtually all circumstances judges are not required to disclose the grounds for recusal. As provided for in section 100.3(F) of the Rules, a judge "may disclose on the record the basis of the judge's disqualification." 22 NYCRR 100.3(F) (emphasis added). But that disclosure is made where there are grounds for remittal. Here, as stated above, there should not be a remittal. If therefore follows that, under such circumstances, including the policy of confidentiality, non-disclosure in the instant matter of the reason for recusal is entirely appropriate.