Opinion 07-102

June 6, 2007

Please Note: In December 2020, the legislature enacted Judiciary Law § 9, which states: “Any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding shall provide the reason for such recusal in writing or on the record; provided, however, that no judge shall be required to provide a reason for such recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.”

Digest:         A judge who exercises recusal when an attorney appears before him/her is not required to disclose the reason for such recusal.

Rules:          22 NYCRR 100.3(E)(1)(a)(i); 100.3(F); Opinion 91-51 (Vol. VII); Matter of Appel, (Comm. on Jud Conduct, Slip Op [May 14, 2007]).

Opinion:

         A judge asks whether he/she must disclose to an attorney the judge’s reason for exercising recusal when the attorney appears before him/her. The attorney asked the judge to recuse him/herself because the attorney was representing a client well known to the judge. While the judge did exercise recusal when the attorney appeared before him/her, it was for a reason unrelated to the attorney’s professional relationship with that client. The attorney subsequently advised the judge that the matter involving that client was concluded and asked the judge to hear the attorney’s other cases.

         As the judge’s decision to recuse when the attorney appeared before the judge was unrelated to the attorney’s professional relationship with the client, the judge advised the attorney by letter that he/she would continue to exercise recusal. On several occasions, the attorney has asked the judge to state his/her reason for the continued recusals, but the judge has declined to reveal it.

         In light of the Commission on Judicial Conduct’s (Commission) recent decision in Matter of Appel (NY Comm on Jud Conduct, May 14, 2007), the judge now asks whether he/she must disclose to the attorney the reason for the judge’s continued recusal from cases in which the attorney appears, and/or whether the judge must provide the attorney an opportunity to be heard concerning the judge’s recusal.

          In Appel, the Commission admonished the judge for refusing to explain her reasons for prohibiting an attorney from appearing before her in future cases. The Commission found that, based solely on unsubstantiated hearsay information about a purported overheard conversation, the judge had developed a personal bias against the attorney. Nevertheless, the judge finalized two Vehicle and Traffic Law cases in which the attorney represented the defendants. Immediately thereafter, the judge informed the attorney - in open court and in a manner that unnecessarily exposed the attorney to public embarrassment - that for personal reasons the judge did not disclose or explain, the judge would not permit the attorney to appear before her in future cases. The judge simply refused to explain her reasons for declining to hear any cases in which the attorney appeared.

         Whether it is proper to sit in a particular case “is a matter confined to the conscience of the particular judge.” Opinion 91-51 (Vol. VII); see also People v Moreno, 70 NY2d 403, 405. Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1)(a)(i). The Rules provide for remittal of disqualification where a judge discloses the basis of disqualification on the record, but such disclosure is not mandatory. 22 NYCRR 100.3(F). And, in those situations where recusal is mandatory and therefore remittal is not permitted, id., disclosure may serve no practical purpose.

         The judge in the present inquiry has communicated his/her intent to recuse to the attorney by letter, not in open court. Unlike the judge in Appel, there is no indication that the inquiring judge is using recusal to punish or otherwise hurt or embarrass the attorney. The inquiring judge has not acted - nor is he/she proposing to act in future recusals - in an irresponsible, undignified or demeaning manner towards the attorney as the Commission found was the case in Appel.

         The Committee believes that, in most cases, judges explain their reasons for recusal, a practice that serves to promote the public’s confidence in the integrity and impartiality of the judiciary. However, the Committee strongly believes also that a blanket rule requiring judges to disclose their reasons for recusal in all situations is inadvisable, unnecessary, and counterproductive due to the chilling effect such an edict would have in certain situations where recusal is otherwise and clearly warranted. In the Committee’s view, therefore, judges must have the discretion to decide, on a case-by-case basis, whether to disclose their reasons for recusal. This approach is reasonable and makes sense because it both protects judges and others from suffering unnecessary embarrassment or humiliation as the result of a particular disclosure, and it ensures that judges will exercise recusal in all appropriate cases.

         Therefore, it is in the inquiring judge’s discretion to decline to disclose his/her reason for recusal from cases involving a particular attorney.