Opinion 05-143

January 26, 2006

Note: Opinion 09-45 has clarified that "[a]lthough the Committee did not specifically mention the availability of remittal in Opinion 05-143, it was not the Committee’s intention to preclude it under the facts presented."

Digest:         Recusal is required where the law firm, representing a party before the judge, was consulted by the judge about a pending investigation of a complaint that the judge believes was filed against him/her with the State Commission on Judicial Conduct.

Rules:          22 NYCRR 100.3(E)(1); 100.2; Opinions 00-112 (Vol. XIX); 00-89 (Vol. XIX); 94-11 (Vol.XII); 92-54 (Vol. IX); 91-10 (Vol. VII)

Opinion:

         A full-time City Court Judge advises that a complaint has likely been filed with the State Commission on Judicial Conduct charging him/her with unethical conduct. Consequently, the judge has consulted an attorney. The judge states that, to date, he/she has not been informed of any charges by the State Commission on Judicial Conduct and asks the following questions:

(1) Until I actually hire the attorney, whom I consulted, to represent me before the Commission, must I recuse myself from cases in which he/she appears before me?

(2) Until I actually hire the attorney whom I consulted, must I recuse myself from cases in which other lawyers from the same law firm appear before me?

(3) If I hire an attorney to represent me before the Commission, must I recuse myself from cases in which other lawyers from the same law firm appear before me?

Pursuant to section 100.3 (E) (1) of the Rules Governing Judicial Conduct, a judge must disqualify him/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 of the judiciary. 22 NYCRR 100.2. Thus, recusal is required when an attorney or a member of the attorney's law firm, currently representing the judge, appears before the judge on behalf of a party (Opinions 00-89 (Vol XIX); 91-10 (Vol VII)). Furthermore, recusal is also required where the attorney, consulted by a judge in connection with a pending investigation of a complaint the judge believes has been or may be filed with the State Commission on Judicial Conduct against him/her, appears before the judge on behalf of a party (Opinions 94-11 (Vol XII); 92-54 (Vol IX); see also Opinion 00-112 (Vol XIX). Similarly, recusal is required if a member of that attorney's firm appears before the judge (Opinions 00-89 (Vol XIX); 92-54 (Vol IX); 91-10 (Vol VII). If, however, no charges are brought by the Commission against the judge, the judge need not recuse him/herself following the expiration of two years from the time that the judge has last consulted the attorney on the matter. Opinions 94-11 (Vol XII); 92-54 (Vol IX).