Opinion 07-190

December 6, 2007

Digest:         During a period when there is a longstanding request for judicial salary increases before the Legislature, if a State Legislator or an attorney from a State Legislator’s law office appears as counsel, a judge should exercise recusal on that basis only if the judge genuinely believes he/she cannot be fair and impartial as a result of the involvement of that particular attorney in the matter.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(E)(1); Opinions 07-25; 06-19/06-29; 05-91; 05-32; 02-44; 00-78/00-80 (Vol. XIX); 99-81 (Vol. XVIII); 92-82 (Vol. IX); People v. Moreno, 70 N.Y.2d 403 (1987).

Opinion:

         In light of the statewide, ongoing issue regarding judicial salary increases, a New York State judge asks:

         Do I have an ethical obligation to recuse myself from a case in which a state legislator, or an attorney from a state legislator’s office, is appearing before me and, due to the current salary adjustment crisis, I question my ability to be fair and impartial? Do I have an ethical obligation to recuse myself from such a case to avoid the appearance of impropriety when I have no question regarding my ability to be fair and impartial, but a party or attorney has raised the issue? Finally, is there an appearance of impropriety that arises from the publicity that surrounds this issue, requiring that I recuse myself from every case in which a state legislator, or an attorney from such a legislator’s office, appears before me, regardless of whether the issue is raised?

         In Opinion 07-25, this Committee advised that it would not be consistent with the Rules Governing Judicial Conduct for judges to exercise recusal in cases where a State Legislator or a member of a State Legislator’s law firm appears as counsel, solely because of the long-standing issue of judicial salary increases. The Committee stated that in such cases, if judges “believe they can be fair and impartial ... then exercising recusal solely because the longstanding issue of judicial salary increases is currently before the Legislature would be improper. For it is not, in our opinion, a circumstance which, in and of itself, gives rise to the conclusion that ‘the judge’s impartiality might reasonably be questioned’ (22 NYCRR 100.3[E][1])....” Opinion 07-25.

         At the time the Committee issued Opinion 07-25, there already had been considerable publicity surrounding the issue of judicial salaries in New York State. In the Committee’s view, therefore, the “publicity” referred to in the present inquiry does not, in and of itself, justify recusal if the inquiring judge has “no question” that he/she can be fair and impartial. The same analysis applies, regardless of whether a party or attorney has challenged the judge’s ability to be impartial on this basis.

         The inquiring judge also asks what he/she should do if “I question my ability to be fair and impartial.” In situations where, as here, the surrounding circumstances do not give rise to an appearance of impropriety, the decision to recuse “is a matter for the exercise of discretion and within the conscience of the judge.” Opinion 05-91; see also People v. Moreno, 70 N.Y.2d 403 (1987); Opinions 06-19/06-29; 00-78/00-80 (Vol. XIX); 99-81 (Vol. XVIII). Because the inquiring judge presents questions with contradictory assumptions (“I question my ability to be fair and impartial” and “I have no question regarding my ability to be fair and impartial”), it appears that he/she may have no clear feeling one way or the other. Therefore, judge should carefully consider his/her personal situation.

         Only if, after searching his/her conscience, the judge genuinely doubts his/her ability to be fair and impartial, should the judge exercise recusal. See Opinions 05-32 (when the judge’s former client appears as a participant in a drug treatment court, the judge need not immediately exercise recusal, “unless the judge personally questions his/her ability to act fairly and impartially in the matter”); 02-44 (a town justice is not disqualified from presiding over a matter in which the defendant is a co-judge’s former town constable/court attendant, but “the justice should exercise recusal if the justice doubts his/her ability to be impartial”); 00-78/00-80 (Vol. XIX), 92-82 (Vol. IX) (a judge may preside where his/her political opponent is an attorney in the case, “unless the judge doubts his or her impartiality”).

         At the same time, the judge should bear in mind that if, after the judge has carefully examined his/her personal conscience, the judge believes that he/she can be fair and impartial notwithstanding the salary issue, then “opting for disqualification on the ground stated would ... erode public confidence in the integrity, impartiality and independence of the judiciary. 22 NYCRR 100.1; 100.2(A).” Opinion 07-25.