Opinion 07-73

June 7, 2007

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Note #2: This opinion has also been modified by Opinion 21-59(B) with respect to the judge’s obligations more than two years after the imposition of public discipline.  The digest to Opinion 21-59(B) states: “Provided the judge can be fair and impartial, a judge who was publicly censured by the Commission on Judicial Conduct more than two years ago may preside in matters involving individuals who had testified on the judge’s behalf in the disciplinary proceeding. Disclosure is left to the judge’s discretion.”

Digest:         (1) If an attorney appearing before a judge previously provided a character reference letter on the judge’s behalf in a judicial disciplinary proceeding, and the judge believes he/she can be impartial and is willing to preside over the proceeding, the judge must disclose such fact on the record. After disclosure, the judge must exercise recusal unless there is remittal of disqualification in accordance with the procedures set forth in 22 NYCRR 100.3(F). (2) If more than two years have elapsed since the conclusion of the disciplinary matter, and all parties are represented by counsel, the judge must continue to disclose that an attorney appearing in a proceeding previously provided a character reference letter on the judge’s behalf in the judicial disciplinary proceeding, and the judge should seriously consider recusal when a party objects, unless the judge concludes that the objection is frivolous, in bad faith, or is wholly without merit. (3) In all such pro se and/or ex parte matters, the judge must exercise recusal.

Rules:          22 NYCRR 100.2(B)-(C); 100.3(E)(1); 100.3(F); Opinions 00-97 (Vol. XIX); 98-27 (Vol. XVI); 88-153 (Vol. III).

Opinion:

         A Supreme Court judge, who presides in a matrimonial part and may hear certain ex parte applications for post-judgment relief, was recently investigated by the Commission on Judicial Conduct. Several attorneys submitted character references on the judge’s behalf, which were made part of the record of the proceedings before the Commission. The proceedings resulted in a formal admonition. The judge inquires about his/her recusal obligations if the author of a

submitted character reference appears before the judge, and whether he/she may use the following script to disclose the issue on the record:

Please be advised that Counsel for the [name of plaintiff, defendant or respondent] previously provided a character reference letter on my behalf with regard to an unrelated personal matter. If you wish to request my recusal, please make such request in writing, on or before the return date or next scheduled Court date pursuant to the New York Code of Judicial Conduct....

The judge further inquires whether substantially similar language may be used as notice to the non-movant, when one of the attorneys who submitted a character reference is seeking ex parte relief.

         Under the Rules Governing Judicial Conduct, a judge must disqualify himself/herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Further, a judge shall not allow family, social, political or other relationships to influence the judge’s conduct or judgment, nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. 22 NYCRR 100.2(B)-(C).

         The Committee previously concluded that a judge should exercise recusal whenever an attorney has submitted an affidavit or other statement on the judge’s behalf to the Commission on Judicial Conduct, unless the judge makes disclosure of such facts and there is remittal of the disqualification pursuant to Section 100.3(F) of the Rules Governing Judicial Conduct. Opinion 00-97 (Vol. XIX). If the judge withdraws from the case, however, there is no disclosure obligation. Id.

         In the circumstances presented here, if the judge believes that he/she cannot be impartial, the judge must exercise recusal. If the judge believes that he/she can be impartial, the judge must nevertheless continue to exercise recusal, subject to remittal, for a two year period from the conclusion of the disciplinary proceeding. Opinion 88-153 (Vol. III).

          Once two years have elapsed from the disciplinary proceeding’s conclusion, if the judge believes he/she can be impartial

and is willing to preside over a matter in which an attorney who authored a character reference letter appears, the judge should disclose that the attorney provided such a letter. If any party objects to the judge presiding, the judge should seriously consider recusal, and should do so unless the judge concludes that the objection is frivolous, in bad faith, or is wholly without merit. See Opinion 92-54 (Vol. IX); 88-153 (Vol. III).

         The judge should simply disqualify himself/herself, without the possibility of remittal, in matters in which a party is self-represented or in which an ex parte application for relief is sought, since to continue to preside may create an appearance of impropriety. 22 NYCRR 100.2; 100.3(E)(1); Opinion 98-27 (Vol. XVI).

         Finally, the Committee does not approve of the notice of disclosure the judge proposes. The phrase “personal matter” does not adequately set forth the basis of the disqualification as required by section 100.3(F) of the Rules. Moreover, it incorrectly places the burden on the parties to request recusal. In this regard, if the judge does not wish to disclose the basis of the disqualification, then he/she need not do so. In that case, however, the judge simply must recuse.