Opinion 09-188

October 22, 2009

Digest:         A judge who cannot be impartial when a certain attorney appears in the judge’s court must disqualify him/herself from the attorney’s cases. There is no provision in the Rules Governing Judicial Conduct that permits a judge to prevent an attorney from appearing in the judge’s court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1)(a)(i); 100.3(F); Joint Opinion 08-183/08-202/09-112; Opinions 06-99; 05-37.

Opinion:

         A judge who filed a grievance against an attorney approximately two years ago advises that, although the grievance has since been resolved, he/she continues to disqualify him/herself when the attorney appears. According to the judge, he/she “cannot be impartial in view of [the attorney’s] past conduct” before the court. However, the judge is concerned about violation of probation proceedings where he/she imposed the initial sentence of probation and the attorney now represents the defendant. In the judge’s view, it is important that he/she preside in the violation of probation proceedings as he/she often makes representations to a defendant when imposing a sentence and he/she wants to be able to follow through on any such representation in an appropriate case. In addition, the judge is concerned that a defendant who know that the judge regularly disqualifies him/herself when the attorney appears will hire the attorney to avoid appearing before the judge. Therefore, the judge asks whether he/she can disqualify the attorney from representing defendants in violation of probation proceedings where he/she imposed the initial sentence of probation.

         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 where the judge’s impartiality might reasonably be questioned, including where a judge has a personal bias concerning a party (see 22 NYCRR 100.3[E][1][a][i]). Except in certain limited circumstances, such as where a judge has a personal bias or prejudice concerning a party, the parties and their lawyers may remit the judge’s disqualification after the judge discloses the reason for his/her disqualification and the parties and their lawyers, without the judge’s participation, all agree that the judge should be disqualified and the judge believes that he/she can be impartial and is willing to preside (see 22 NYCRR 100.3[F]).

         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). However, where a judge “cannot be impartial in view of [an attorney’s] past conduct,” the time which has passed since a grievance committee resolved a complaint is irrelevant (see 22 NYCRR 100.3[E][1][a][i]). Because the inquiring judge states he/she cannot be impartial when the attorney appears in the judge’s court, the judge must disqualify him/herself, and remittal is not available (see id.; 22 NYCRR 100.3[F]).

         There is no provision in the Rules Governing Judicial Conduct that permits a judge to prevent an attorney from appearing in the judge’s court. However, if the judge determines that there is a substantial likelihood that the attorney is committing a substantial violation of the Code of Professional Ethics, the judge must take appropriate action (see 22 NYCRR 100.3[D][2]).