Opinion 12-07

January 26, 2012

Digest:         A judge who is a respondent in an Article 78 proceeding directed to the judge’s official role may preside in unrelated cases commenced by the same law office, unless the judge doubts his/her ability to be fair and impartial in the unrelated matter.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 11-64; 09-47(B); 01-24 (Vol. XIX); 95-38 (Vol. XIII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge states that a legal services agency, which frequently appears in the judge’s court, recently represented a petitioner in an Article 78 proceeding against the judge in his/her judicial capacity.¹ The judge has notified the agency that he/she plans to exercise recusal whenever the agency’s employees appear. The judge now asks whether, under these circumstances, he/she may preside when private attorneys who volunteer to represent indigent parties in the agency’s pro bono program - on an ad-hoc, temporary basis - appear before him/her.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge may not preside in a case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in specific circumstances set forth by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14).

         The Committee previously has advised that where a judge is named individually as a defendant in a lawsuit, but the causes of action are directed at the judge’s institutional role, the judge need not disqualify him/herself when the attorney who commenced the lawsuit appears in the judge’s court in unrelated cases, unless the judge cannot be impartial (see Opinions 09-47[B]; 01-24 [Vol. XIX]; see also Opinion 95-38 [Vol. XIII] [part-time judge may continue to preside in cases prosecuted by part-time assistant district attorney associated with a law firm that may be suing judge where judge has no personal interest in the civil litigation but, rather, is being sued solely in his/her official capacity as a stakeholder]).

         Here, too, the fact that the judge was named as a respondent in an Article 78 proceeding in his/her official capacity does not, without more, cause the judge’s impartiality to reasonably be questioned in other, unrelated matters wherein the petitioner’s attorney appears, provided the judge can be fair and impartial (see Opinion 09-47[B]). Of course, if the judge doubts his/her ability to be impartial in a particular matter, then disqualification is required (see Opinion 11-64).

         The Committee emphasizes that this standard applies to all matters in which the legal services agency appears, whether by permanent staff attorney employees or by temporary volunteer attorneys. Here, however, the inquiring judge has asked only if he/she may preside over matters in which the legal services agency appears through a private attorney who is representing an indigent party on an ad-hoc, temporary basis. Clearly, the judge may preside over such matters unless the judge concludes, as a matter of conscience, that he/she cannot be fair and impartial (see People v Moreno, 70 NY2d 403, 405 [1987] [where disqualification is not mandated, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court”]).

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      ¹According to the inquiring judge, the Article 78 petition alleged that the judge erred as a matter of law and/or abused his/her discretion in granting certain relief on default and then in declining to sign an order to show cause why the default should not be vacated. The Article 78 proceeding was subsequently dismissed for failure to state a cause of action.