Opinion 10-209

March 9 - 10, 2011

Digest:         A judge need not disqualify him/herself when an attorney appearing before the judge previously represented a plaintiff in an action against the judge in the judge's individual capacity, as long as the judge believes he/she can be impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E); 100.3(E)(1); Opinions 98-161 (Vol. XVII); 91-52 (Vol. VII); People v Moreno, 70 NY2d 403 (1987); Judiciary Law §14.

Opinion:

         An attorney currently appearing before the inquiring judge previously represented a plaintiff in an action against the inquiring judge in the judge’s individual capacity. The action was settled more than ten years ago. Until recently, the judge disqualified him/herself from all cases in which the attorney appeared. However, after searching his/her conscience, the judge now sees no reason to do so. Nevertheless, the attorney now asks the judge only to recuse him/herself in some cases on the basis of the prior action, but in other cases makes no such request. The judge asks whether he/she must accede to these selective recusal requests.

         A judge must always avoid impropriety and its appearance in the judge’s actions (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself whenever the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). 

         The Committee previously has advised that a judge who was personally involved in an unrelated action is not required to disqualify him/herself when an attorney who represented the judge’s adversary in that action appears in the judge’s court (see Opinions 98-161 [Vol. XVII] [judge is not required to disqualify him/herself where a medical malpractice action brought by the judge on behalf of the judge's infant child has been concluded and an attorney who represented a defendant in that action is now appearing before the judge] and 91-52 [Vol. VII] [judge who has commenced a medical malpractice suit on behalf of the judge's infant child need not disqualify him/herself from any case in which an attorney representing a defendant in the malpractice action appears before the judge, unless the judge believes he or she cannot be impartial, but should disclose the information to all parties and recuse upon a party’s request]). Unless disqualification is mandated pursuant to 22 NYCRR 100.3(E) or Judiciary Law §14, the trial judge "is the sole arbiter of recusal[, and] [t]his discretionary decision is within the personal conscience of the court . . . ." (People v Moreno, 70 NY2d 403, 405 [1987]).

         Therefore, the inquiring judge is not required to disqualify him/herself when an attorney appearing before him/her represented a plaintiff - especially a decade earlier - in an action against the inquiring judge in the judge’s individual capacity, as long as the judge believes he/she can be impartial.