Opinion 16-84

June 16, 2016

Digest:         (1) A judge need not disqualify him/herself when an attorney, who previously represented the judge’s recent election opponent in an election law case, appears, provided the judge believes he/she can be fair and impartial. (2) The judge’s prior discretionary recusal from a case involving the attorney does not require perpetual disqualification where the recusal was not mandated by the rules or prior opinions.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(a)-(f); 100.3(E)(1); 100.3(E)(1)(c); Opinions 14-121; 10-209; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         A judge asks if he/she may preside in cases involving an attorney who represented the judge’s recent election opponent in a petition for re-canvassing. The petition named the judge as a party, but the attorney withdrew the petition at an early stage. The judge has already disqualified him/herself from one matter involving that attorney, but wishes to know if disqualification is mandatory on these facts and, if so, for how long. That lawyer requested the judge’s recusal in another upcoming “election case.”

         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 case where the judge’s impartiality might reasonably be questioned or in other specific circumstances required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14).

         Where, as here, none of the specifically enumerated circumstances mandate disqualification,¹ the key question is whether the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). In a somewhat analogous fact pattern, the Committee advised that a judge need not disqualify him/herself when an attorney appearing before the judge previously represented a plaintiff in an action against the judge in the judge’s individual capacity, as long as the judge believed he/she could be impartial (see Opinion 10-209). Here, it would be even less reasonable to question the judge’s impartiality, because the attorney withdrew the petition naming the judge at an early stage. Because the judge’s impartiality cannot reasonably be questioned, “the trial judge is the sole arbiter of recusal” (People v Moreno, 70 NY 2d 403, 405 [1987]). The judge therefore need not disqualify him/herself in matters involving this attorney, provided the judge believes he/she can be fair and impartial.

         The judge’s prior decision to recuse him/herself in a matter involving the attorney does not change the result. A strictly voluntary prior recusal does not require a judge to disqualify him/herself in perpetuity (see e.g. Opinion 14-121). Where, as here, the initial recusal was not mandated by rules or prior opinions, but, rather, was undertaken as a purely prophylactic measure in the judge’s sole discretion, the Committee sees no reason to require disqualification in other cases involving the attorney, provided the judge can be fair and impartial.

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            ¹ That the attorney is now appearing in another “election case” does not cause the judge to have “an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]), simply because the attorney previously represented the judge’s opponent in an election case.