Opinion 09-136

June 3 - 4, 2009

Digest:         Although an attorney who appears in the judge’s court may have filed a complaint against a judge with the Commission, the judge need not disqualify him/herself or disclose that the complaint has been made, and the judge is not precluded from appointing the attorney to serve as assigned counsel or attorney for the child or in any other fiduciary position.

Rule:            22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 08-36; 07-102; 02-96; 97-102 (Vol. XVI); 94-94 (Vol. XII); 94-46 (Vol. XII); 91-51 (Vol. VII).

Opinion:

         The inquiring judge is the subject of a pending disciplinary proceeding before the Commission on Judicial Conduct (Commission) about the judge's conduct during a case in which the judge presided. Although the complaint alleges that the judge engaged in impermissible conduct, the Commission’s agreed statement of facts indicates that the judge notified the parties, counsel, and the respondent, in open court, that he/she would engage in the very conduct that gave rise to the disciplinary proceeding. While the judge does not know the identity of the complainant, he/she assumes that it could be any one or more of the several attorneys, parties or other individuals involved in or having knowledge of the case.

         The judge asks what, if any action he/she must take when any of the attorneys involved in the case that gave rise to the disciplinary proceeding appear in his/her court. In particular, the judge asks whether he/she must disclose that someone filed a complaint against him/her with the Commission or if he/she must exercise recusal when any of the attorneys involved in the case appear in the judge’s court on different cases. The judge also asks whether he/she may continue to appoint these attorneys to serve as assigned counsel or as attorney for the child (law guardians) or to any other fiduciary positions.

         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 disqualify himself/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge who believes that he/she can be impartial need not disqualify him/herself from presiding when an attorney who appears in the judge’s court has filed a complaint against the judge with the Commission on Judicial Conduct (see Opinions 08-36; 94-94 [Vol. XII]; 94-46 [Vol. XII]). 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 Opinion 07-102). However, a judge must disqualify him/herself when an attorney who filed a complaint against the judge with the Commission appears in the judge’s court after the Commission issues a formal written complaint (see Opinions 02-96; 97-102 [Vol. XVI]).

         In the present inquiry, the judge advises only that someone filed a complaint against him/her with the Commission, but does not know the identity of the complainant. Therefore, although one of the attorneys involved in the case that gave rise to the complaint to the Commission may have filed the complaint, the judge need not disqualify him/herself or disclose that the complaint has been made when any of the attorneys appear in the judge’s court if the judge believes that he/she can be impartial (see Opinions 08-36; 94-46 [Vol. XII]; 94-94 [Vol. XII]). Nor is the judge required to refrain from appointing any of these attorneys to serve as assigned counsel or attorney for the child or to any other fiduciary position.