Opinion 17-17

March 15, 2017

Dear :

         This responds to your inquiry (17-17) asking whether you may preside over matters involving a particular attorney. The attorney had previously sought your recusal in one case based on an alleged short-term business relationship between the complaining witness and your spouse in 2014. After you denied the motion, defense counsel filed a disciplinary complaint against you. The Commission on Judicial Conduct commenced an investigation and took testimony in the matter, but has not issued a formal written complaint. The attorney has now moved for your recusal in another case solely on the ground that you have “an ongoing conflict” with his/her law firm. (There is no indication that any party or witness in the new case has any connection with you or your spouse.)

         The Advisory Committee has previously advised that an attorney’s decision to file a complaint with the Commission on Judicial Conduct does not, by itself, require the judge’s disqualification. Rather, the judge may preside, provided he/she can be fair and impartial, even if the complaint remains pending and the Commission is investigating the matter. Disqualification is not mandatory unless the Commission has formally charged the judge with misconduct in a formal written complaint under Judiciary Law § 44(4). Accordingly, on the facts presented, you may preside in cases involving the attorney who reported you, provided that you can be fair and impartial and the Commission has not issued a formal written complaint.

         Enclosed, for your convenience, are Opinions 16-129; 16-141; and 97-02 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

Committee Co-Chair

Encls.