Opinion 00-97

October 19, 2000

Digest:         Where an attorney or other participant in a matter before the judge has submitted an affidavit or other statement on the judge's behalf to the State Commission on Judicial Conduct, which is presently conducting an investigation of the judge, the judge should exercise recusal, unless the judge makes disclosure of such facts and there is remittal of the disqualification pursuant to section 100.3(F) of the Rules Governing Judicial Conduct. In the event the judge withdraws from the case, there is no obligation to make disclosure of such facts.

Rule:            Jud. Law §§ 44(4), (7), 45; Nicholson v. State Commission on Judicial Conduct, 67A 2d 649, mod. on other grounds, 50 N.Y.2d 597 (1980); 22 NYCRR 100.2; 100.2(B), (C); 100.3(E)(1); 100.3(F); N.Y. State 602; Opinions 97-135 (Vol. XVI); 89-79 (Vol. IV); 88-120/125 (Vol. II).

Opinion:

         A judge who had appeared before the Commission on Judicial Conduct as the subject of a complaint and whose case is still in the investigatory phase, inquires whether there is a requirement to make disclosure of the fact that one of the attorneys or another participant in the case, has submitted an affidavit or written statement to the Commission on the judge's behalf and may be called upon to testify if the Commission orders an evidentiary hearing.

         Several individuals who have appeared before the judge, including members of the criminal defense bar, assistant corporation counsel, law enforcement officers, and a bail project administrator, have submitted to the Commission affidavits and written statements attesting to the respondent judge's good character and judicial temperament. The Commission has not yet concluded the proceeding; nor has it ordered an evidentiary hearing.

         As shown below, at issue is the relationship between maintaining confidentiality with respect to Commission proceedings and the necessity of avoiding situations that bring into question a judge's impartiality.

         Pursuant to 22 NYCRR 100.3(E)(1), a judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. Further, a judge shall not allow family, social, political or other relationships to influence the judge's conduct or judgment. 22 NYCRR 100.2(B). Nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. 22 NYCRR 100.2(C).

         Pursuant to Judiciary Law §§44(4), (7) and 45, absent an admonition, censure or determination of removal from office, the proceedings before the Commission on Judicial Conduct are confidential and may be waived only by the respondent judge See also Opinion 89-79 (Vol. IV). If the judge is absolved or merely receives a letter of caution, the law requires that confidentiality be maintained. Nicholson v. State Commission on Judicial Conduct, 67 AD2d 649, mod. on other grounds, 50 NY2d 597 (1980).

         Thus, it is apparent that given the various governing principles, any requirement of disclosure of the judge's relationship with a party to the proceedings must be balanced against the judge's entitlement to confidentiality with respect to any proceeding pending before the Commission, and the right to defend against complaints. Nevertheless, the party whose adversary has filed an affidavit on the judge's behalf could reasonably believe that such adversary has the potential to influence the outcome of the proceeding before the Commission. An adverse ruling by the Commission could have an important effect on the judge's judicial position. This might reasonably call into question the judge's impartiality.

         In a prior opinion of this Committee, Opinion 88-120/125 (Vol. II), we concluded that a judge must disclose that one of the attorneys now before the judge had represented the judge in a previous personal legal matter. The judge was advised that he/she "need not immediately disqualify himself or herself, unless the judge harbors a doubt as to his or her ability to act impartially in the matter . . ." but if "the judge does not feel that disqualification is required, the judge, nevertheless should disclose the relationship to both parties, and may preside over the case only upon consent of both parties" id..

         In Opinion 97-135 (Vol. XVI), we advised that the judge should not preside over any case in which the attorney currently representing the judge before the Commission on Judicial Conduct appears before the judge. Once the representation of the judge concludes, there should be disclosure of the former relationship to all parties in any subsequent case in which the attorney appears, and recusal is required if there is any objection by the attorney's adversary. This would avoid any appearance of impropriety arising from a situation in which the judge's impartiality might reasonably be called into question. 22 NYCRR 100.2; 100.3(E)(1).

         Also of significance is an opinion by the New York State Bar Association Committee on Professional Ethics. In N.Y. State 602, dealing with obligations of lawyers, a partner of an attorney who had been subpoenaed to testify before the Commission on Judicial Conduct in a proceeding brought against a judge, appeared on an unrelated matter before the judge. The issues raised were: (1) whether the partner was required to request that the judge recuse himself from matters in which the firm appeared as counsel; (2) whether opposing counsel needed to be informed of the relationship between the firm and the judge; and (3) whether the firm's clients needed to be informed about the subpoena involving one of the firm's partners.

         After reviewing the confidential nature of the proceedings before the Commission, the Association cited (former) Canon 3C(1), of the Code of Judicial Conduct, which, like 22 NYCRR 100.3(E)(1), required recusal where the judge's "impartiality might reasonably be questioned." The Association stressed that "[n]ot only must there be no partiality in fact, even the appearance of partiality is to be avoided" id.. The opinion continues: "Because we believe that the judge should not preside over cases in which the witness appears and it is reasonable to assume that other lawyers in the witness' firm share the witness' knowledge, we find that the judge should also recuse himself from presiding over cases in which the witness' partners and associates appear" id..

         Even though the attorney who appeared before the court in N.Y. State 602 was only the partner of the witness who was subpoenaed to testify before the Commission, the Association concluded that as "a matter of judicial ethics, the judge has a choice. He may disqualify himself and say nothing; or he may make full disclosure, and leave it to the litigants and their counsel to decide whether to remit his disqualification" id..

         Although not binding on this Committee, N.Y. State 602 is consistent with our opinions in this area.

         In conclusion, in the opinion of this Committee, the decision regarding the waiver of the confidentiality provisions of Judiciary Law §45 should be left to the individual judge. If he or she discloses the nature and extent of the judge's relationship with the person who submitted the statement to the Commission, the judge may continue to sit on the case, provided the judge believes he or she can be impartial and there is compliance with the procedures for remittal under section 100.3(F) of the Rules. If the judge prefers to say nothing about the pending Commission investigation, the judge must withdraw from any proceeding in which that person is materially involved.