Opinion 17-71

May 17, 2017

Dear :

         This responds to your inquiry (17-71) asking whether you may require the prosecutor’s office to replace an assistant district attorney against whom you have filed a pending disciplinary complaint or whether you are disqualified from presiding. This assistant district attorney will likely second chair an upcoming trial in a criminal action that is related to the action that gave rise to the disciplinary complaint.

         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the integrity and independence of the judiciary (see 22 NYCRR 100.1; 100.2). 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]). Accordingly, the Committee has advised that a judge should not attempt to intervene in the staffing decisions of an organization, because such attempt could undermine the impartiality and integrity of the judiciary.

         The Committee has also advised that a judge who files a disciplinary complaint against an attorney must disqualify him/herself during the pendency of the disciplinary proceeding when the attorney appears in the judge’s court and for two years after the matter is resolved. Remittal is not available during this period unless the grievance committee issues a published disciplinary opinion or the attorney waives confidentiality. Provided the judge is satisfied that other prosecutors in the same office were not involved in the reported misconduct, the judge may continue to preside in matters in which those other prosecutors appear.

         Enclosed, for your convenience, are Opinions 16-146; 14-90; 11-139; and 08-183/08-202/09-112 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.