Opinion 13-44

April 25, 2013

Digest:         A judge who previously served on a few occasions as a part-time prosecutor by designation is not required to disclose in criminal matters that his/her designation by the local district attorney was revoked without explanation following unrelated media criticism of the latter prosecutor.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(E)(1); 100.3(E)(1)(a)-(e); 100.3(F); Opinions 12-36; 11-64; 07-14; 00-10 (Vol. XVIII); 96-139 (Vol. XV); 93-116 (Vol. XI); Joint Opinion 92-114/92-127 (Vol. X); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge states that, before becoming a judge, a local prosecutor had designated him/her to prosecute certain matters from time to time. Following some media criticism of the prosecutor’s office, however, the prosecutor revoked the designation without explanation. There is no indication in the inquiry that such criticism in any way related to the designation, or to the inquirer’s conduct on the very few occasions in which he/she had served as prosecutor. Indeed, the judge states that he/she has never met the prosecutor and is uncertain why the designation was revoked. The judge now asks whether he/she must disclose these circumstances in matters involving the local prosecutor’s office. The judge states that he/she can be fair and impartial in deciding cases in which the prosecutor’s office appears.

         A judge must always avoid even the appearance of impropriety (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 in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).¹

         There are two initial objective questions to consider when determining if disqualification is required. The first is whether disqualification is mandated under the specific circumstances in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. If none of those enumerated circumstances applies, the second question is whether the judge's impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

         Applying these principles here, the first question is easily answered: the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[e]; Judiciary Law §14).

         As for the second question, the Committee believes these facts do not create any objectively reasonable basis to question the judge’s impartiality in all matters involving the prosecutor’s office (see 22 NYCRR 100.3[E][1]). The Committee previously has advised that a judge who served as an assistant district attorney before assuming the bench may preside over cases that were pending in the district attorney’s office during the judge’s prior service as an assistant district attorney, provided the judge had no direct involvement in the prosecution of those cases and believes he/she can be fair and impartial (see Opinions 07-14; 96-139 [Vol. XV]; 93-116 [Vol. XI]). The additional fact that the prosecutor revoked his/her prior designation of the inquirer to prosecute certain offenses, following apparently unrelated media criticism of the prosecutor’s office, does not cause the judge’s impartiality to reasonably be questioned particularly as there is no indication the criticism had any connection with the inquirer.²

         Because disqualification is not mandated under either objective standard, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]). The Committee sees no reason to mandate disclosure of the circumstances described by the judge in all cases in which the prosecutor’s office appears.

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     ¹ Although the inquiring judge has asked about his/her disclosure obligations, the Committee notes that the appropriate starting point for analysis is Section 100.3(E)(1). Although the Rules Governing Judicial Conduct do not, on their face, directly mandate disclosure, disqualification is ordinarily subject to remittal after full disclosure under appropriate circumstances (see 22 NYCRR 100.3[F]). The Committee has taken this a step further, advising that, in some circumstances, disclosure may be appropriate in lieu of outright disqualification (e.g. Opinion 12-36).

     ² Even if the criticism had been directed at the judge, there is no ethical requirement for disqualification for that reason(see Opinion 00-10 [Vol. XVIII] [noting “the fundamental view that a judge has the duty not to be swayed by fear of criticism and that a party should not be able to compel recusal merely by circulating accusations against the judge”]; Joint Opinion 92-114/92-127 [Vol. X] [“There is no ethical requirement that the judge disqualify [him/ herself] merely by virtue of the fact that people who appear before the judge have been saying harsh things about the judge and conducting a campaign against him or her”]; cf. 22 NYCRR 100.3[B][1] [“A judge shall not be swayed by partisan interests, public clamor or fear of criticism”]). Here, where the object of the criticism is a third party rather than the judge, it is even less likely that the judge’s impartiality might reasonably be questioned.