Opinion 09-191

October 22, 2009

Digest:         A judge who was admonished by the Commission on Judicial Conduct, but who does not know the identity of the complainant, need not disclose that the disciplinary action occurred when an attorney who could be the complainant subsequently appears in the judge’s court; nor is the judge precluded from appointing such attorney to fiduciary positions for which the attorney otherwise qualifies.

Rule:            Judiciary Law § 44(4); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 09-136; 02-96; 97-102 (Vol. XVI); 89-154 (Vol. V).

Opinion:

         The inquiring judge advises that he/she was the subject of a complaint filed with the Commission on Judicial Conduct (Commission). The judge further advises that the Commission’s proceedings are now concluded and that he/she was admonished. While the judge does not know the identity of the complainant, he/she assumes that it could be one or more of the four attorneys who appeared in the case that was the subject of the complaint, any of the parties involved in the case, or someone not directly involved in the case but who has knowledge of it.

         The judge asks whether he/she must disqualify him/herself when any of the attorneys appear in his/her court and whether he/she may appoint any of the attorneys to serve as 18-B counsel or as a law guardian.

         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 his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         While the complaint was pending with the Commission, the inquiring judge asked the same questions of the Committee. In Opinion 09-136, the Committee advised that although an attorney who appears in the judge’s court may have filed a disciplinary complaint against the judge, the judge need not disqualify him/herself or disclose that the complaint was 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.

         In the Committee's view, the fact that the Commission has admonished the judge does not warrant a different result.

         Ordinarily, once the Commission issues a formal written complaint against a judge (see Judiciary Law § 44[4] [providing for service of "a formal written complaint signed and verified by the administrator"]), the judge must disqualify him/herself when an attorney who initiated the complaint process appears in the judge's court (see Opinions 02-96; 97-102 [Vol. XVI]). And, once the Commission proceeding is concluded, a judge should disqualify himself/herself in all matters where the individual attorney-witnesses who testified at the hearing appear before the judge (see Opinion 89-154 [Vol. V]). However, because the inquiring judge does not know the identity of the complainant in his/her disciplinary proceeding, this principle is inapplicable (see Opinion 09-136). Therefore, the inquiring judge need not disqualify him/herself when any of the four attorneys who appeared in the case that gave rise to the judicial disciplinary proceeding appear in the judge’s court. Nor is the judge precluded from appointing any of these attorneys to serve as assigned counsel, law guardians, or in other such fiduciary capacities when it is otherwise permissible to do so (see id.).