Opinion 15-37

March 19, 2015

Digest:         A judge who has been publicly disciplined as a result of complaints made by the local prosecutor’s office and the local public defender’s office is disqualified from presiding in matters in which attorneys from these offices appear, for two years from the date of the published disciplinary decision.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 11-64; 98-71 (Vol. XVII); 90-66 (Vol. V); 89-154 (Vol. V).

Opinion:

         The inquiring judge states that attorneys from the local prosecutor’s office and the local public defender’s office regularly appear before him/her. Attorneys in both of these offices filed a disciplinary complaint against the judge, which has, after a hearing, resulted in a published disciplinary decision. The judge asks how to proceed now that the disciplinary proceedings are resolved, as attorneys from those offices appear in the vast majority of the cases before the judge.¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, 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]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14).

         In Opinion 89-154 (Vol. V), the Committee considered the following circumstances:

Several local private attorneys, as well as several attorneys employed in the district attorney’s and public defender’s offices, testified in a proceeding brought by the Commission on Judicial Conduct in which the judge was a respondent, following which the judge was publicly censured by the Commission. The question presented is whether the judge is required to disqualify himself in all actions where the district attorney, the public defender, attorneys in their respective offices, the local witness attorneys, or their law firms, appear.

The judge, who is the only judge presiding in the county-level court vested with criminal jurisdiction, is in daily contact with attorneys associated with the district attorney’s and public defender’s offices. Since his career could have been affected by the testimony of the attorneys who testified at the Commission hearing, his impartiality reasonably may be questioned with respect to these attorneys. Therefore, it is clear that the judge should disqualify himself in all matters where the individual attorney-witnesses who testified at the hearing appear before the judge.

Under the specific facts presented, the Committee further advised that disqualification was “required in any case where either office appears,” and recommended that such disqualification continue for two years from the date of the public censure (Opinion 89-154 [Vol. V]). The Committee emphasized that both offices were relatively small, and “the scope of involvement of both offices in the events leading up to and including the Commission hearing apparently was high, making the risk of mutual hostility also high, at least in the public perception” (id.). Under such circumstances, the Committee advised that the “public must be assured that criminal proceedings in the county will not be affected by rancor or favor” (id.).

         The Committee adhered to this viewpoint in Opinion 90-66 (Vol. V), advising that in light of a “possible appearance of mutual hostility and the need to assure the public that proceedings in the court will not be affected by rancor or favor,” disqualification was mandatory, without the possibility of remittal, “in all matters handled by attorneys and their associates, who previously had testified at a hearing involving the judge before the Commission on Judicial Conduct, where the hearing resulted in a public censure of the judge” (id.).

         The Committee believes that similar factors are at work here, as the local prosecutor’s office and public defender’s office were likewise sufficiently involved in the disciplinary process that the judge’s impartiality can reasonably be questioned in any case where either office appears (see Opinion 89-154 [Vol. V]). Indeed, it seems inescapable under the circumstances presented here that there will be a public perception of mutual hostility between the judge and the attorneys whose complaints and/or testimony have resulted in a finding of public discipline that may affect the judge’s judicial career (see Opinion 90-66 [Vol. V]; 89-154 [Vol. V]). Here, too, the public needs assurance “that proceedings in the court will not be affected by rancor or favor” when attorneys from the prosecutor’s or defender’s office appear (Opinions 90-66 [Vol. V]; 89-154 [Vol. V]).

         It is therefore the Committee’s view that the inquiring judge must disqualify him/herself in all matters where either the local prosecutor’s office or the local public defender’s office appear (see Opinion 90-66 [Vol. V]), for a period of two years from the date of the published disciplinary decision (see e.g. Opinion 90-66 [Vol. V]).

         After this two-year period, the judge may preside in such matters, but only if the judge is entirely certain he/she can be fair and impartial (see Opinion 11-64 [“if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside”]; see also Opinion 98-71 [Vol. XVII] [advising that disqualification is no longer mandatory for a judge who was admonished more than two years earlier as a result of a complaint made by the District Attorney, where, among other things, “there is no indication of any hostility between the District Attorney and the inquirer” and “the judge believes that he or she can be impartial”]).

         The Committee recognizes, of course, that the judge’s disqualification obligations here “may involve serious administrative problems that perhaps can be met only by administrative transfer of judges from one court or county to another” (Opinion 89-154 [Vol. V]).

_________________________

         ¹ The inquiring judge states that he/she is not currently presiding in matters involving the prosecutor’s or public defender’s office, as he/she is not yet confident of his/her own “ability to fairly preside” in such matters.