Opinion 11-113

  December 19, 2011

Please Note: As of the Committee’s April 29, 2021 meeting:

(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where a judge previously reported an attorney to the grievance committee. 

(2) With respect to whether a judge may publicly disclose the reason for recusal here, in light of the apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10), we have advised: “Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve.”  See Opinion 21-45 (but noting that private disclosure to the reported attorney is ethically permissible).

Dear :

         This responds to your inquiry (11-113) asking whether you must disqualify yourself if you file a disciplinary complaint against an attorney when that attorney thereafter appears before you. He/she is one of three agency attorneys who appear regularly, but randomly, in your court.

         The Committee has previously determined that a judge who files a formal complaint or makes an informal report to a disciplinary authority which results in charges of misconduct against an attorney is disqualified from presiding over matters in which that attorney appears before the judge, during the pendency of the disciplinary matter. Remittal is not available because the required disclosure which precedes any remittal would breach the confidentiality of the disciplinary process. If disqualification occurs frequently, you should consult your administrative judge about any administrative measures that might be available.

         As for the other two agency attorneys, you need not disqualify yourself when those attorneys appear before you solely because you have filed a disciplinary complaint against their colleague.

         Enclosed, for your convenience, is Joint Opinion 08-183/08-202/09-112 which addresses this issue.

Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Enc.