Opinion 14-55

April 24, 2014

Digest:         A judge who is called as a witness in a criminal case concerning threats allegedly made against the judge may continue to preside over unrelated matters involving the attorneys who are prosecuting or defending that criminal case, provided the judge concludes he/she can be fair and impartial in the matters before him/her.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1 )(a)(I); 100.3(E)(1)(a)-(g); Opinions 13-83; 12-01; 11-86; 11-64; 09-219; 08-170; 05-78; 99-78 (Vol. XVIII); 90-18 (Vol. VI); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge states that he/she is the subject of an Order of Protection against a criminal defendant who threatened to physically injure the judge as retribution for the judge’s past decisions and to prevent the judge from making future decisions affecting the defendant. Thereafter, the judge disqualified him/herself from all matters involving the defendant in conformance with Opinion 13-83. The defendant has now been indicted on criminal charges, based in part on the judge’s testimony before the grand jury, and the judge expects to be called as a witness at trial. The judge states that the defendant’s criminal defense attorney regularly appears before the judge, as does the assistant district attorney whose office is prosecuting the defendant. The judge states he/she can be fair and impartial in unrelated matters where those attorneys appear, but asks whether disqualification or disclosure is required under the circumstances.

         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]). Thus, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][I]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[g]; Judiciary Law §14).¹

         Certainly if the judge believes he/she cannot be impartial when either of the attorneys appears before him/her, then the judge must disqualify him/herself. However, in the Committee’s view, the circumstances here do not trigger any of the specified grounds for mandatory disqualification when these attorneys appear in their representative capacities in unrelated matters (see 22 NYCRR 100.3[E][1]). Therefore, the question is whether the judge’s impartiality “might reasonably be questioned” (id.).

         The Committee has previously advised that a part-time lawyer/judge may preside at a criminal trial where the defendant is represented by an attorney who cross-examined the judge as a witness in a civil proceeding in another court (Opinion 90-18 [Vol. VI]). The Committee stated:

Should the judge conclude that [his/her] experience with the attorney in question will prevent [his/her] presiding at the pending criminal trial in a fair, impartial and unbiased manner, then the judge, sua sponte, should recuse [him/her]self. However, the mere fact that the judge was cross-examined in a civil proceeding by an attorney who will be representing a defendant in a criminal jury trial before the judge, is not a ground for mandatory recusal or disqualification.

(id.).²

         The present inquiry, however, involves an additional factor that was not present in Opinion 90-18 (Vol. VI). Specifically, the case in which the inquiring judge will testify, subject to cross-examination, is a criminal case based on a defendant’s alleged threats against the judge. It appears that the alleged threats were sufficiently serious to prompt the judge presiding in the criminal case to issue an Order of Protection against the defendant.

         So the question presented here, which appears to be a matter of first impression for the Committee, is whether the personal nature of the criminal case in which the inquiring judge will be called to testify, as an alleged victim or target of threats, warrants a different result from that in Opinion 90-18 (Vol. VI). If so, the judge will have to disqualify him/herself.

         Although the Committee has not previously addressed the issue of whether threats of violence by a party appearing before a judge may cause the judge’s impartiality to be reasonably questioned when that party’s attorney appears before the judge in an unrelated matter, the Committee has repeatedly advised that such threats do not, without more, cause the judge’s impartiality to be reasonably questioned when that party appears before the judge (see Opinions 13-83; 12-01; 11-86; 08-170; 05-78; 99-78 [Vol. XVIII]). As explained in Opinion 12-01:

The Committee has previously advised that a judge is not disqualified from presiding merely because one party threatens the judge or the judge's family, provided the judge believes he/she can be fair and impartial (see Opinions 11-86; 99-78 [Vol. XVIII]). Thus, absent other factors, the determination whether a judge can be fair and impartial in a case after a party threatens the judge or his/her family is a matter confined solely to the conscience of the particular judge (see Opinions 11-86; 99-78 [Vol. XVIII]; People v Moreno, 70 NY2d 403 [1987]).

         The same standard applies even when the judge has filed a criminal complaint alleging that a litigant has criminally harassed the judge while his/her case was pending (see Opinion 99-78 [Vol. XVIII] [advising that disqualification is within the judge’s discretion]) and when a judge has obtained an Order of Protection against an individual based on the individual’s conduct during a recent appearance before the judge (see Opinion 13-83 [advising that, once the Order of Protection expires, the judge may preside over matters involving the individual, provided the judge believes he/she can be fair and impartial]).

         Here, of course, there is even less reason to question the judge’s impartiality, because neither the defense counsel nor the prosecutor was involved in threatening the judge (cf. Opinion 12-01 [no appearance of impropriety where “the threatening letter was not even directed to this judge, as it was written before the subject child's birth”]). Indeed, the attorneys are involved in the criminal case solely in their professional and representative capacities.

         Therefore, under these circumstances, the Committee concludes the inquiring judge may preside over matters where a litigant is represented by an attorney who is involved in prosecuting or defending a criminal case involving alleged threats against the judge, even if the attorney has called or cross-examined the judge as a witness in the criminal case (see Opinion 90-18 [Vol. VI]).

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     ¹ There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[g]) 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” (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).

     ² The Committee notes that, if it were to apply the principles in Opinion 09-219 to the present inquiry, the judge would need to disqualify him/herself from matters involving the prosecutor and defense counsel from the time the judge is subpoenaed or otherwise called to testify, until the judge’s testimony has concluded. However, the Committee believes Opinion 09-219 is distinguishable. The law firm in Opinion 09-219 was a party defendant in a malpractice action (rather than attorneys acting purely in their representative capacity), and the Office of Court Administration filed a motion to quash the subpoena. Thus, the relationship between the judge and the party defendant law firm in Opinion 09-219 was adversarial to a degree not found in Opinion 90-18 (Vol. VI) or the present inquiry.