Opinion 15-69

April 23, 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, a court attorney referee, who advised and spoke with the referring judge about attorney misconduct that was revealed during proceedings before the referee resulting in a lawyer disciplinary complaint, must be held to the same standard as if he/she had personally filed the complaint.

Rules:          CPLR 4301; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.6(A); Opinions 14-88; 13-61; 11-113; 10-122; 09-188; 09-142; 08-183/08-202/09-112; 08-98; 06-99; 05-37.

Opinion:

         The inquiring court attorney referee learned of facts indicating serious misconduct by a law firm while appearing before him/her. He/she “reviewed [his/her] concerns with the referring Justice,” who ultimately reported the law firm to the attorney grievance committee. The referee is aware the referring judge (who personally filed the disciplinary complaint) is currently disqualified from the law firm’s cases as a result, but asks whether the same standard applies to him/her, since the referee did not personally report the law firm to the grievance committee.

         Court attorney referees must obey the Rules Governing Judicial Conduct while performing their judicial duties and “so far as practical and appropriate” use the rules to guide their conduct (see 22 NYCRR 100.6[A]). Like judges, they must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a he/she may not preside in a case where his/her impartiality might be questioned, absent remittal of disqualification in proper circumstances (see 22 NYCRR 100.3[E][1]; 100.3[F]).¹

         Had the inquiring court attorney referee 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 (see Opinions 14-88; 13-61; 11-113; 10-22; 09-188; 09-142; 08-183/08-202/09-112; 06-99; 05-37). Such disqualification is not subject to remittal “unless the attorney waives confidentiality or the grievance committee issues a public disciplinary decision” (Opinion 14-88; see also Opinions 10-122; 08-183/08-202/09-112).

         The question is therefore whether the inquiring court attorney referee’s impartiality may also be reasonably questioned where the referee did not personally file the disciplinary complaint but instead provided information to the referring judge who eventually filed the complaint. The Committee notes, initially, that the inquiring court attorney referee was the one personally familiar with the alleged misconduct underlying the complaint. Moreover, because a court attorney referee presides over a matter pursuant to an order of reference issued by a referring judge, it is only to be expected that a referee would first consult with the judge before deciding whether to file an attorney disciplinary complaint in connection with the matter – just as the inquiring referee did. Presumably, the inquiring referee collaborated, consulted with and advised the referring judge with respect to the alleged misconduct and the decision to report, even though final decision-making authority rested with the referring judge who ultimately reported the incident. Under these circumstances, the Committee concludes the inquiring referee must be held to the same standard as the referring judge with respect to a disciplinary complaint which was made in consultation with the referee, based on misconduct the referee brought to the judge’s attention.

         Therefore, the referee must disqualify him/herself from all proceedings in which the law firm appears before him/her while the complaint is pending and for a two year period after the complaint is resolved (see Opinion 14-88). Again, remittal of this disqualification is not permitted during this period while the attorney’s right to confidentiality precludes the referee from fully disclosing the basis for disqualification (see id.). Moreover, because the inquiring court attorney referee cannot relieve him/herself from an assignment (see CPLR 4301), if the law firm appears in any case assigned to the referee, he/she must “advise the judge who appointed him/her so that the judge can relieve the court attorney of his/her responsibilities with respect to the case and assign another court attorney referee” (Opinion 08-98).

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            ¹ The Committee has recognized a significant difference in the mechanism of disqualification for a court attorney referee: “Unlike a judge, ... court attorney referees have no power to relieve themselves from their duties. A court attorney referee who is disqualified and cannot preside, therefore, must so advise the judge who appointed him/her so that the judge can relieve the court attorney of his/her responsibilities with respect to the case and assign another court attorney referee” (Opinion 08-98 [citation omitted]).