Opinion 15-147

September 10, 2015

Digest:         A judge who presided over certain cases, and subsequently learned that recusal would have been appropriate in those cases, has no further ethical obligation in cases now concluded.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 14-17; 08-86; 90-31.

Opinion:

         On learning of Committee opinions requiring disqualification subject to remittal in a particular category of cases for a specified period, the inquiring judge immediately exercised recusal from all such pending cases, consulted his/her supervising judge, and took steps to ensure that any new cases in this category would not be assigned to him/her.

         However, the judge had previously presided over some cases in this category and issued final decisions or judgments, without realizing disqualification was required. The judge notes that he/she “rendered each and every decision in a completely impartial manner” entirely “uninfluenced by” the incident that triggered the disqualification obligation.¹ He/she seeks guidance on his/her ethical obligations for the now-concluded cases.

         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 not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         During the period when he/she mistakenly presided over certain cases, the judge says he/she was entirely unaware of the need to recuse and remained completely impartial in deciding each case. There is no indication the judge questions the legal correctness of the decisions (see Opinions 14-17; 08-86; 90-31). Nonetheless, on learning disqualification was required, the judge took immediate action to disqualify him/herself where ethically required and notified his/her supervising judge. On these facts, the Committee concludes the judge need take no action in cases now concluded, as they are no longer before the judge and will not return to him/her.

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         ¹ Indeed, the judge notes that “the incident ... never entered my mind.” Presumably, if the incident had crossed the judge’s mind in connection with these cases, the judge would have thought to ask about his/her ethical obligations.