Opinion 09-179

September 11, 2009

Digest:         A judge who referred a number of matters in which a particular attorney served as a fiduciary to the Office of Court Administration’s Managing Inspector General of Fiduciary Appointments for investigation must disqualify him/herself in any proceeding in which the attorney appears for a period of two years after said Inspector General completes his/her investigation.

Rules:          22 NYCRR 100.2; 100.2(A); Opinions 09-21; 06-99; 05-37; Joint Opinion 08-183/08-202/09-112

Opinion:

         A judge advises that he/she and his/her co-judge referred a number of matters in which a particular attorney served as a fiduciary to the Office of Court Administration’s Managing Inspector General of Fiduciary Appointments (IG) for investigation. According to the judge, the IG concluded the investigation and notified these judges that he/she “could not substantiate conduct necessary to remove [the attorney] from the fiduciary eligibility list.” The judge asks whether he/she or his/her co-judge may preside when the attorney now appears in their courts. The judge further advises that he/she and his/her co-judge are the only judges in the court who preside in the types of cases in which the attorney appears as a fiduciary and that the attorney is assigned to so serve in a significant number of these cases.

         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 him/herself in any proceeding in which his/her impartiality might reasonably be questioned.

         The Committee previously has advised that a judge who files a complaint against an attorney with an attorney grievance committee must disqualify him/herself in any case in which the attorney is involved while the complaint is pending (see Opinions 06-99; 05-37) and for a period of two years after the complaint is resolved (see Joint Opinion 08-183/08-202/09-112). And, in Opinion 09-21, the Committee reached the same conclusion where a judge files a complaint with the IG’s Office concerning alleged misconduct by an attorney purportedly acting as an appointed guardian. Therefore, the judge and co-judge in the present inquiry also are disqualified from presiding in cases involving the attorney who served as a fiduciary in the matters they referred to the IG for investigation for two years after the date on which the IG concluded the investigation.

         The Committee fully recognizes the hardship that may result because the inquiring judge and his/her co-judge are the only judges in their county who hear the attorney’s guardianship cases, and both referred the matters to the IG for investigation. Nevertheless, the application of the Rules Governing Judicial Conduct are not controlled by administrative concerns, as judges must avoid even the appearance of impropriety (see 22 NYCRR 100.2).