Opinion 01-24

March 8, 2001

Digest:         The fact that a lawsuit has been instituted against a board of judges comprising all members of a court, does not require the judges of the court to exercise recusal where an appearance in other matters is being made by the law firm that represents the plaintiffs in that lawsuit; nor is a judge who is named as a party in that lawsuit disqualified from presiding in such proceedings, provided that the judge, in good conscience, and in the exercise of discretion, believes that he or she can be fair and impartial.

Rule:            Jud. Law §14; 22 NYCRR 100.3(E); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 91-52 (Vol. VII); 91-52 (Vol. VII).

Opinion:

         A judge and a member of the county legislature have brought a lawsuit that includes as defendants the board of judges of a county-wide court and one of the judges of that court who serves as its acting president. The board of judges is a statutory body comprising all members of the court, including the plaintiff judge.

As set forth in the complaint, it is alleged that pursuant to various statutes, the county has established a traffic and parking violations agency headed by an executive director whose selection is subject to the approval of the board of judges. At a recent meeting of the board of judges, the executive director of the agency was redesignated. Essentially, the lawsuit challenges the lawfulness of the selection of the executive director and, in particular, the calling of the meeting in which that took place as well as the authority of the acting president to have convened a meeting of the board of judges. The lawsuit is pending in the Supreme Court, not the court which is involved.

         Based on the foregoing, two questions are raised by the named defendant-judge and another judge of the court: (1) whether the judge who is named as a defendant, must exercise recusal when members of the plaintiff's law firm appear before the judge in other matters; (2) whether every judge of the court must exercise recusal when members of plaintiff's law firm appear, inasmuch as all judges of the court are members of the board of judges, which is a named party.

         At the outset, we note that neither section 14 of the Judiciary Law, which is the sole statutory authority for disqualification, nor section 100.3(E) of the Rules Governing Judicial Conduct by their terms, mandate recusal in this matter. In particular, section 100.3(E)(1), provides that "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where . . . ." None of the instances then recited in subparagraphs (a) through (e) appear to be present. But this is not dispositive, since other circumstances may give rise to a conclusion that the proceeding is one in which the "judge's impartiality might reasonably be questioned."

         Upon review of the complaint in the underlying matter, it does not appear to the Committee that the mere fact of a lawsuit having been brought against the body of judges of this court is, in and of itself, a circumstance which requires recusal by every member of that body whenever a lawyer from the law firm that has brought the action appears in that court in unrelated matters. That is, that fact alone does not give rise, in our view, to the conclusion that the proceeding in which the lawyer is presently appearing before a member of the board is one in which the judge's "impartiality might reasonably be questioned." Certainly, none of the facts alleged in the complaint, requires us to conclude that no judge of the court should preside in any case involving plaintiffs' law firm while that lawsuit is pending. To conclude otherwise would, in effect, disqualify the court itself, thereby depriving parties who are otherwise properly before the court from having their matters heard. Such a draconian result is not at all warranted in this instance.

         As to the individually named judge, we note that the causes of actions are directed to the judge's activities as the acting president of the board of judges. Thus it is the judge's institutional role that is the subject of the claims being made and there does not appear to be any personal or direct financial or other economic interest on the part of the judge in the outcome of that lawsuit. It is this fact which distinguishes the matter from Opinion 91-52 (Vol. VII), where the inquiry was from a judge who had commenced a medical malpractice suit on behalf of the judge's infant child. The Committee concluded that this fact did not require the judge "to recuse himself or herself from any case in which one of the attorneys of the firm representing the defendants in the malpractice action appears before the judge in another matter, unless the judge believes he or she cannot be impartial." But the Committee went on to state that there must be disclosure of this information and if a party objects, the judge should not preside.

         For the reasons stated above, we do not believe that such disclosure followed by recusal in the event of objection, is necessarily required with respect to the inquiring judge. Essentially, as in Opinion 91-52 (Vol. VII), it is a matter that rests with the conscience of the judge. In that opinion, in a situation involving a history of prior conflicts between a part-timelawyer-judge and an attorney now appearing before the judge, the Committee advised that discretion should be exercised and that the judge in such a situation should be guided by ethical standards. As stated by the Committee (Opinion 91-52 [Vol. VII]):

In the exercise of that discretion, a judge should be guided by ethical standards. Section 100.1 of the Rules of the Chief Administrator mandates that every judge shall observe the high standards of conduct so that the integrity of the judiciary is maintained. Section 100.2 requires a judge to conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Section 100.3(c) states that a "judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including but not limited to circumstances where: 1) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

If, in the observance of these guidelines, and, in good conscience, in the exercise of discretion, the judge believes that his or her feelings toward the attorney or his firm would not prejudice the attorney's client or future clients, recusal is not required.

         The Committee is of the opinion that here, too, if, in good conscience and in the exercise of discretion, the judge concludes that the fact of having been named a defendant in that lawsuit instituted by the law firm would not prejudice the law firm's present or future clients, recusal is not required. In short, if the judge believes that he or she can be fair and impartial in such proceedings, the judge is not disqualified from presiding.