Opinion 15-117

June 11, 2015

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:         On these facts, where a judge encouraged successor counsel to report his/her predecessor and said he/she would personally follow through as necessary to ensure a disciplinary complaint was ultimately filed, the judge must be held to the same standard as if he/she had personally filed the complaint.

Rules:          22 NYCRR 100.2(A); 100.3(D)(2); 100.3(E)(1); Opinions 15-69; 14-88; 10-122; 08-183/08-202/09-112.

Opinion:

         The inquiring judge presided over a case where one side’s lawyer was dilatory and negligent about fees. The judge “ordered that fees be returned and indicated that, if [successor counsel] did not file a disciplinary complaint, [the judge] would do so.” Successor counsel told the judge he/she filed a disciplinary complaint, although the judge does not know its current status. The judge asks if he/she may preside when that attorney appears.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, if a judge receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]). A judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Had the inquiring judge “personally made a formal or informal complaint against an attorney, he/she would have been disqualified in any case in which the attorney is involved both during the pendency of the disciplinary matter and for a period of two years after the disciplinary matter is fully resolved. Such disqualification is not subject to remittal ‘unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision’” (Opinion 15-69 [citations omitted]; see also Opinions 14-88; 10-122; 08-183/08-202/09-112).

         The issue here is whether this judge’s impartiality may also be reasonably questioned, where he/she not only directed the reported attorney to return certain fees to the client, but also stated he/she would file a disciplinary complaint if successor counsel did not. Essentially, the judge made clear he/she had decided reporting was warranted and would personally follow through as necessary to ensure such a complaint was filed. On these facts, the Committee concludes this judge is in the same position as if he/she had filed an informal report with a disciplinary committee (see Opinion 08-183/08-202/09-112).

         Thus, the judge must disqualify him/herself from all the reported attorney’s cases while the complaint is pending and for two years after it is resolved (see Opinion 14-88). “[R]emittal of this disqualification is not permitted during this period while the attorney’s right to confidentiality precludes the [judge] from fully disclosing the basis for disqualification” (Opinion 15-69).