Opinion 14-150

October 23, 2014

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).

Digest:         A judge who reported an attorney to a grievance committee is thereafter disqualified from signing a proposed order the same attorney submitted in an unrelated matter, unless the judge determines the proposed order is perfectly identical to the judge’s oral order in the case, which was issued a year before the judge reported the attorney. If so, the judge may sign the proposed order without amendment provided there are no legal issues for the judge to consider or resolve in connection with the proposed order. The judge is otherwise disqualified in all cases in which the lawyer appears, including cases that were pending at the time the judge reported the attorney, during the pendency of the disciplinary complaint and for two years after the disciplinary complaint is resolved.

Rules:          CPLR 3025(b); 22 NYCRR 210.33; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 14-166; 14-88; 14-36; 13-83; 13-64; 13-61; 12-25; 10-122; 09-223; 09-145; 09-142; 09-61; 99-28 (Vol. XVII); 97-59 (Vol. XV); Joint Opinion 08-183/08-202/09-112.

Opinion:

         Well over a year ago, the inquiring judge issued an oral decision on a motion, and directed the prevailing attorney to submit a proposed order for the judge’s review and signature. The case thereafter remained on the judge’s docket without any action by the parties or their counsel. Recently, the judge filed a disciplinary complaint against the attorney on unrelated grounds. Approximately two weeks later, the attorney submitted a proposed order as the judge had previously directed in the first case. The judge asks if he/she may review and sign the proposed order, and if he/she may preside over other pending matters in which the attorney 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]). A judge must also disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 14-88, the Committee advised that a judge who files a disciplinary complaint against an attorney:

must disqualify him/herself from the present case, as well as any other case in which the attorney appears either as a party or as an attorney, both during the pendency of the disciplinary matter, and for a period of two years after the disciplinary matter is fully resolved (see Opinions 13-61; 10-122; 09-142). As the Committee has previously advised, “the attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, is paramount” (Joint Opinion 08-183/08-202/ 09-112). Therefore, because remittal is not permitted when a judge is unwilling or unable to make full disclosure of the basis for disqualification (see 22 NYCRR 100.3[F]; Opinion 13-64), remittal is not available unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision (see generally Opinion 10-122; Joint Opinion 08-183/08-202/09-112).

There is no exception from the disqualification requirement for cases that were already pending at the time the judge reported the attorney. As the Committee has advised, “the risk that a judge’s impartiality might reasonably be questioned as the result of filing a complaint against an attorney with the appropriate disciplinary body is not mitigated by the timing of the complaint” (see Joint Opinion 08-183/08-202/09-112 [citation omitted] [a judge who filed a complaint against an attorney before assuming the bench is disqualified after assuming the bench in any matter involving the attorney until two years after the complaint is resolved]; cf. Opinions 13-83 [a judge who obtained an order of protection against a party during the pendency of a criminal case is disqualified from all pending cases involving that party].

         As a baseline, therefore, the inquiring judge is disqualified in all pending or future proceedings in which the complained-of attorney appears, for a period of two years after the disciplinary complaint is resolved. Moreover, where a ground for disqualification exists, the Committee has advised that a judge ordinarily must not preside, even in “matters that appear to be routine, mundane, uncontested or ministerial in nature” (see Opinion 12-25). Thus, for example, a judge who is disqualified from presiding over a particular criminal case based on his/her relationship with an attorney must do so at the outset of the case, and may not first conduct an arraignment (see Opinion 09-223; accord, Opinions 14-166; 14-36; 97-59 [Vol. XV]). Similarly, the Committee has advised that a judge who is disqualified from presiding over matters where a particular attorney appears may not “so-order” stipulations entered into by that attorney (see Opinion 12-25).

         The Committee has nonetheless cautiously recognized that some functions may in fact be truly “ministerial, rather than judicial” in nature, “if the judge’s role is purely formal, so that the judge lacks any real discretion in performing it, or if the task or function can properly be delegated to non-judicial personnel, or if it has no substantial legal effect” (Opinion 12-25). These principles are very narrowly construed and have so far been applied to permit a judge who has a disqualifying relationship with a prosecutor to “receiv[e] a ‘hand-up’ of indictments from the grand jury” (Opinion 09-145; see also Opinion 99-28 [Vol. XVII]); or to grant an unrepresented criminal defendant’s post-arraignment request (i.e., a request made on a date subsequent to his/her arraignment) for an adjournment to secure representation (see Opinion 09-61).¹

         It is unclear under the facts presented whether signing the proposed order will be truly “ministerial” within the meaning of the Committee’s prior opinions. To make that determination, the inquiring judge should first review the proposed order and carefully compare it with the record. If the judge determines the proposed order is completely identical to the terms agreed upon or ordered on the record, and there are no accompanying circumstances which will require the judge to exercise discretion or perform adjudicative duties, the judge may sign the proposed order without alteration, as this will be, essentially, a “ministerial” function which is perfunctory and devoid of any additional adjudicative function or the exercise of discretion beyond the judge’s prior order, which was made at a time before the disqualifying circumstance occurred (compare Opinions 09-61 and 99-28 [Vol. XVII] with Opinion 12-25). After performing the purely ministerial act of signing into effect a proposed written order which merely memorializes the decision the judge had issued before the disqualifying circumstance occurred, the judge must disqualify him/herself from the case.

         If the judge determines that the proposed order is not identical to the terms agreed upon or ordered on the record, or if there are legal challenges to the proposed order or requests for costs or additional relief or any other matter that requires the exercise of judicial discretion (see e.g. 22 NYCRR 210.33; CPLR 3025[b]), the judge’s role in the matter cannot be deemed “ministerial” in nature within the meaning of the Committee’s very narrow exception (compare Opinion 12-25 with Opinions 09-61 and 99-28 [Vol. XVII]). In that circumstance, the judge must simply disqualify him/herself from the case, without the possibility of remittal (see Joint Opinion 08-183/08-202/09-112), and may not sign the proposed order before doing so.

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         ¹ The Committee reasoned that the judge’s role in receiving grand jury indictments is “perfunctory and ministerial” and the judge “performs no adjudicative function whatsoever” (Opinion 99-28 [Vol. XVII]) and that granting an unrepresented criminal defendant’s post-arraignment request for an adjournment to secure representation is essentially a ministerial act which is in the best interests of the defendant and/or the judicial system (see Opinion 09-61).