Opinion 08-206

January 29, 2009

Digest:         A judge need not disqualify him/herself when an attorney, who may have made a complaint against the judge several years ago, appears before the judge, as long as the judge believes that he/she can be impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3; 100.3(E)(1); Opinions 08-36; 02-96; 97-102 (Vol. XVI); 94-94 (Vol. XII); 94-46 (Vol. XII).

Opinion:

         A judge advises that he/she was the subject of a proceeding relative to a judicial ethics complaint that recently was concluded. The judge further advises that a few members of the bar told him/her that several years ago a particular attorney stated that he/she intended to file a complaint against the judge and solicited other attorneys to join him/her in making the complaint. While someone did file a complaint against the judge, the judge does not know the complainant’s identity. The judge asks whether he/she must take any action with respect to the attorney who stated his/her intention to file a complaint against the judge.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must perform the duties of judicial office impartially and diligently (see 22 NYCRR 100.3), and must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge need not disqualify him/herself because the judge has reason to believe that an attorney may file a complaint against him/her as long as the judge believes that he/she can be impartial (see Opinion 08-36). Nor must a judge disqualify him/herself because an attorney appearing before the judge filed a complaint against the judge with the Commission on Judicial Conduct as long as the judge can remain impartial (see Opinions 94-94 [Vol. XII]; 94-46 [Vol. XII]). And, where the judge is unsure as to whether an attorney has filed a complaint against him/her, it is neither necessary nor appropriate for the judge to ask the attorney whether the attorney has filed a complaint against him/her (see Opinion 08-36). However, if the Commission files a formal written complaint and directs that a hearing be held, the judge must disqualify him/herself until the complaint is resolved (see Opinion 02-96; 97-102 [Vol. XVI]).

         The judge in the present inquiry advises that “[I] do not know that the complaint against me was actually a result of this attorney’s following through on [his/her] statement of intent. I do not really know whether the complaint was made by this attorney, another attorney, or other attorneys, or a litigant, or litigants.” Therefore, in the Committee’s view, unless the judge cannot be impartial when the attorney who several years ago apparently expressed an intention to file a complaint against the judge, he/she need not disqualify him/herself when the attorney appears in the judge’s court.