Opinion 07-35

April 19, 2007

Digest:         Where a litigant before a judge was previously a defendant in a medical malpractice action brought by the judge on behalf of the judge’s child, the judge need not disqualify him/herself unless the judge doubts his/her impartiality.

Rules:          Judiciary Law §14; People v. Moreno, 70 N.Y.2d 403 (1987); 22 NYCRR 100.3(E)(1); Opinions 04-84; 99-78 (Vol. XVIII); 98-161 (Vol. XVII); 91-52 (Vol. VII).

Opinion:

         A judge inquires whether there is a specified time period beyond which his/her impartiality can no longer be “reasonably questioned,” pursuant to 22 NYCRR 100.3(E)(1), where a litigant appearing before the court was the defendant in a medical malpractice action brought by the judge on behalf of the judge’s child. This action was resolved nine years ago.

         None of the instances of mandatory disqualification enumerated in the Rules Governing Judicial Conduct applies to the facts presented. Judiciary Law §14; 22 NYCRR 100.3(E)(1). The Committee has previously concluded that the fact that judge has litigated against one of the parties presently before him/her, in a prior unrelated action, does not automatically disqualify the judge. Opinions 04-84; 99-78 (Vol. XVII). The Committee has also held that a judge is not required to recuse where attorneys, who represented the defendants in a malpractice action filed by that judge, appear before the judge on unrelated matters. Opinion 91-52 (Vol. VII); see also Opinion 98-161 (Vol. XVII) (holding that neither recusal, nor disclosure is required where an attorney who represented the defendant in a previously-resolved malpractice action, brought by the judge on behalf of his/her child, appears in his/her court). Rather, in cases where recusal is not mandatory under 22 NYCRR 100.3(E)(1), the decision to recuse, based on whether the judge believes he/she can remain fair and impartial, is left to the sound discretion of the judge. People v. Moreno, 70 N.Y.2d 403 (1987); Opinions 04-84; 99-78 (Vol. XVIII); 98-161 (Vol. XVII); 91-52 (Vol. VII).

The Rules Governing Judicial Conduct do not specify a precise time period beyond which a judge’s impartiality can no longer be “reasonably questioned.” It is therefore the Committee’s opinion that the judge is required to exercise his or her discretion, as described above, each time this former defendant appears before his/her court. 22 NYCRR 100.3(E).