Opinion 10-60

April 22, 2010

Digest:         (1) Disqualification of all judges within a judicial district is not required solely because a party to the proceeding is a landlord who owns the building that houses the administrative offices of the judicial district. (2) Although a Judicial Hearing Officer may not appear before any judge of a court in which the JHO is designated to serve, the judges of that court need not disclose nor exercise recusal solely because the partners and associates of the JHO appear in a matter.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i)-(ii); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 122.10(b) - (d); Opinions 07-180; 06-97; 89-80 (Vol. IV); Judiciary Law § 14.

Opinion:

         The judges who preside in a court ask whether they must disqualify themselves when the landlord, who leases office space to the Office of Court Administration (OCA), is a party to a proceeding in their court. The judges advise that the judicial district administrative staff that supports their court occupies the leased office space. They also advise that the proceeding does not involve the OCA’s offices or tenancy or any of the judges personally.

         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 a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge must exercise disqualification if he/she has a personal bias or prejudice concerning a party; has personal knowledge of disputed evidentiary facts concerning the proceeding; or knows that he/she has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][a][i]-[ii]; 100.3[E][1][c]; 100.3[E][1][d][iii]).

         The fact that the OCA’s landlord is a party to a proceeding that is pending before the inquiring judge does not, in and of itself, disqualify any of the judges of that court. None of the judges indicates that he/she has a personal bias or prejudice concerning OCA’s landlord (see 22 NYCRR 100.3[E][1][a][i]) nor that he/she served as a lawyer in the matter or has been a material witness concerning it (see 22 NYCRR 100.3[E][1][b][i], [iii]). That the OCA administers all the courts in New York State, including the inquiring judges’ court, does not create any appearance of impropriety that could cause someone to reasonably question the judges’ ability to be impartial (see 22 NYCRR 100.2; 100.3[E][1]). Therefore, in the Committee’s view, any one of the inquiring judges may, in the absence of any other disqualifying factor and assuming he/she can be impartial, preside in the case in which the OCA’s landlord is a party and need not disclose the OCA’s relationship to the landlord.

         The judges also advise that a Judicial Hearing Officer (JHO) who serves on the panel for their court and to whom they assign cases is the law partner of the attorney representing the OCA’s landlord’s adversary. The judges ask whether they must recuse themselves because of this relationship between the JHO and the landlord’s attorney.

         A JHO, who is designated to a JHO panel for the Supreme Court in a particular county, is prohibited from practicing before any of the justices of that court (see 22 NYCRR 122.10[c]). However, he/she may continue to practice law in other courts in the same county to which he/she is not designated to serve as a JHO, but only before the judges who preside in those courts and not before another JHO (see 22 NYCRR 122.10[c]-[d]; Opinion 07-180).

         While a JHO cannot preside in any matter in which his/her law partners or associates represents any party or witness (see 22 NYCRR 122.10[b]), a JHO’s partners and associates are not precluded from appearing before other judges who preside in courts in the county where the JHO serves or is designated to serve (see Opinion 06-97; 89-80 [Vol. IV]). Therefore, the fact that an attorney appearing in a judge’s court is associated in a law practice with a JHO who has been assigned to sit in the judge’s court does not, without more, require the judge to exercise recusal nor to disclose the relationship between the attorney and the JHO.