Opinion 03-03

March 6, 2003

Digest:            Where a judge’s complaint to the State Commission on Judicial Conduct about an attorney-judge who is appearing before him/her in a homicide case (1) was made subsequent to the attorney-judge having complained to the State Commission on Judicial Conduct about the inquirer, (2) involves, in part allegations concerning the attorney-judge’s conduct before other judges, and (3) both complaints are currently under consideration by the State Commission on Judicial Conduct, it is advisable that the judge exercise recusal in the pending matter.

Rule:               22 NYCRR 100.3 (E)(1); Opinions 98-69 (Vol. XVII); 97-102 (Vol. XVII); 94-94 (Vol. XII).

Opinion:

            The inquiring judge is scheduled to preside over a homicide. The attorney for the defendant, who is also a part-time village judge, has filed a complaint against the judge with the State Commission on Judicial Conduct. Subsequent to the filing of that complaint, the inquirer filed a complaint with the State Commission on Judicial Conduct alleging that the attorney “had violated the Code of Judicial Conduct as it applies to a Village Court Judge and the Standards of Conduct as they apply to an attorney.”

            Essentially, the attorney-judge accuses the judge of a bias that is pro-prosecution and of seeking to impede the attorney in the handling of criminal defense matters. The judge accuses the attorney, among other things, of being very disrespectful to judges and of using insulting language in briefs, motions and affidavits. Instances are cited where this has occurred in cases that were handled by other judges. Both sets of complaints are pending before the Commission.

            Noting that he/she can be fair and impartial in the pending homicide proceeding, the inquiring judge seeks the opinion of the Advisory Committee as to whetherr, under the circumstances, he/she should continue in the case or exercise recusal.

            As a preliminary matter we note that the Advisory Committee has consistently held that the fact that a party or attorney has filed a complaint with the State Commission on Judicial Conduct alleging that the judge is guilty of judicial misconduct is not, in and of itself, a sufficient basis for requiring disqualification. See, Opinions 98-69 (Vol. XVII); 97-102 (Vol. XVI); 94-94 (Vol. XII). To hold otherwise, we believe, would give aid and encouragement to those who seek to use such a device as an avenue or means to engage in judge-shopping. Thus, had the Committee been presented with the fact of the making of the complaint by the attorney-judge, and that fact alone, our response would have been in accordance with our earlier opinions.

            However, the judge in this instance is also a complainant before the same disciplinary body as the attorney and is alleging both judicial and professional misconduct. The complaint was filed after the attorney had made his/ her allegations concerning the judge, and involves, in part, claims of misconduct by the attorney-judge in cases presided over by other judges.

            Given this set of circumstances, the Committee has concluded that, notwithstanding the ability and capacity of the judge to be fair and impartial in presiding over the pending matter, it is preferable that the judge exercise recusal. The judge and the attorney are now engaged in a process of seeking to have the same body, i.e., the State Commission on Judicial Conduct, render determinations concerning mutual allegations of misconduct. Those determinations could possibly be made while the criminal proceeding is still pending. In our view, such determinations, whether favorable or adverse as to one complaint or the other or both, where the case is ongoing, could potentially create an unhealthy situation. That is, the appearance of infection of the trial by what is happening or has happened before a disciplinary body, where, in effect, the parties are adversaries in two separate matters should be of real concern. Further, the fact that the judge made his complaint after the attorney-judge had made his/her complaint and went beyond the particulars of personal knowledge of the attorney’s behavior might possibly create an impression that it was in some manner retaliatory.

            We hasten to add that we are not claiming that the judge should not have made the complaint, nor is anything herein intended to contest the validity of that complaint or to express any views whatsoever concerning the matter. Rather, it is our advice that in this particular instance it is preferable that the judge exercise recusal so as to avoid even the appearance that his/her impartiality might be subject to question in the handling of the homicide trial that is pending. 20 NYCRR 100.3(E)(1).