Opinion 02-96

Digest:         A judge should exercise recusal in cases involving the District Attorney’s office, once the State Commission on Judicial Conduct has charged the judge with misconduct in a formal written complaint based upon a complaint against the judge that was made by the District Attorney.

Rule:            22 NYCRR 100.2(A); 100.3(E)(1); Opinions 94-46 (Vol. XII); 94-94 (Vol. XII); 97-102 (Vol. XVI).

Opinion:

         A judge asks whether he/she must exercise recusal in cases involving the District Attorney’s office after the District Attorney has filed a complaint against the judge with the Commission on Judicial Conduct, and the Commission has filed a formal complaint.

         A judge must respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A). A judge, therefore, must disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In Opinions 94- 46(Vol. XII) and 94-94 (Vol. XII), this Committee advised that, so long as a judge can remain impartial, the judge need not exercise recusal merely because an attorney appearing in the judge’s court has filed a complaint against the judge with the Commission on Judicial Conduct. However, once the Commission files a formal written complaint pursuant to Judiciary Law §44(4), a judge should recuse himself or herself to avoid the appearance of impropriety. 97-102 (Vol. XVI)