Opinion 06-168

January 25, 2007

Note: The Committee has concluded “that the attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, is paramount” (Joint Opinion 08-183/08-202/02-112 [modifying or overruling prior opinions]). The change does not affect the Committee’s conclusion that the judge need not recuse for the partners or associates of an attorney whom the judge recently sanctioned and reported to a disciplinary committee under the facts presented. However, a judge must not disclose that he/she filed an attorney grievance except as permitted by Joint Opinion 08-183/08-202/02-112 and its progeny.

Digest:         Provided that the judge feels that he or she can remain fair and impartial, he/she is not required to disclose or to recuse when the partners or associates of an attorney whom the judge recently sanctioned and reported to the Attorney Grievance Committee appear before him/her.

Rules:          22 NYCRR 100.3(E)(1); Opinion 06-107; Joint Opinion 06-19 and 06-29; Opinion 01-120 (Vol. XX).

Opinion:

         The inquiring judge recently sanctioned an attorney, and reported the attorney to the local Attorney Grievance Committee for apparent misconduct during a matter handled by the judge. The judge explains that “the matter before the [Grievance] [C]ommittee is pending an appeal of [the judge’s] decision.” The judge intends to disqualify him/herself in any matter involving this attorney. Opinions 06-107; Joint Opinion 06-19 and 06-29; 01-120 (Vol. XX). The judge now inquires whether he/she must disclose or recuse, when the attorney’s partners and associates (who were not involved in the sanctioned and reported conduct) appear before him/her.

         This Committee has previously determined that when a judge files a disciplinary complaint against the county Public Defender, the judge should disclose this fact for a period of two years, when the Public Defender appears before the judge. The Committee has further determined that the judge need not recuse if the judge believes he/she can remain impartial, and that the judge need not disclose, when other members of the Public Defender’s staff appear before him/her. Joint Opinion 06-19 and 06-29; see also Opinion 01-120 (Vol. XX).

         In the instant matter, given the judge’s representation that the sanctioned attorney’s partners and associates were not involved in the purported misconduct, this Committee sees no reason to apply a different standard to a private law office than to the Public Defender’s office. Joint Opinion 06-19 and 06-29. Therefore, provided that the judge feels that he/she can remain fair and impartial, the judge is not required to disclose or recuse when partners or associates of that attorney’s firm appear before him/her. 22 NYCRR 100.3(E)(1).