Opinion 10-26

March 10 - 11, 2010

Digest:         A judge who believes that he/she can continue to preside in a judicial proceeding “fairly and impartially” need not disqualify him/herself after a court employee, without authorization, accessed the recording of a confidential (Lincoln) hearing held during such proceeding. However, if it is legally permissible to do so, the judge should disclose that the incident occurred to the adult parties and the attorneys involved in the judicial proceeding.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1).

Opinion:

         A judge asks whether he/she must disqualify him/herself after an employee of the judge’s court, without authority, accessed the recording of a confidential hearing held during a judicial proceeding. The court employee was involved with the estranged spouse of a party to the proceeding, but the estranged spouse was not him/herself a party. The judge advises that neither the parties nor their counsel are aware that the incident occurred and that the court employee will be terminated. The judge further advises that he/she can preside in the matter “fairly and impartially.”

         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 the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         It is the Committee’s view that because neither the court employee nor the estranged spouse is a party to the judicial proceeding and the judge advises that he/she can preside in the matter “fairly and impartially,” the judge need not disqualify him/herself because of the court employee’s unauthorized conduct.

         Nevertheless, if it is legally permissible to do so, the judge should disclose to the adult parties and the attorneys involved in the judicial proceeding that the incident occurred.