Opinion 19-39

March 14, 2019

Please Note: While the outcome of this opinion is unaffected, we note that, in December 2020, the legislature enacted Judiciary Law § 9, which states: “Any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding shall provide the reason for such recusal in writing or on the record; provided, however, that no judge shall be required to provide a reason for such recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.”

Digest:         A judge need not disqualify him/herself merely because (1) the judge could potentially be called as a witness in another proceeding concerning a statement the judge does not recall hearing and (2) the judge once disqualified him/herself in another case involving the same attorney, due to an undisclosed conflict with another law firm.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e); Opinions 15-53; 14-189; 14-168; 14-121; 09-172/10-31; 07-102; 91-25; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge asks if disqualification is ethically required under the following circumstances. After a non-jury trial, plaintiff sought relief under the Debtor and Creditor Law as the defendant’s judgment creditor and also sought the judge’s recusal, claiming that the judge “was a witness to admissions by defendant’s counsel.” The alleged admission was that “any judgment against the defendant would be academic, because defendant is a dissolved corporation and plaintiff would never collect on any money judgment.” The judge has no recollection of any such admission,¹ and ultimately denied the motion in its entirety. Now, on a motion for leave to renew and reargue, plaintiff’s counsel urges two grounds for recusal. He/she argues the judge must disqualify him/herself here because (1) the judge could be a witness if plaintiff commences an action under the Debtor and Creditor Law to recoup some of the defendant’s assets and (2) the judge previously disqualified him/herself “in an unrelated action in which [plaintiff’s counsel] is the attorney of record.” However, the judge states that the prior disqualification referenced by plaintiff’s counsel “had nothing to do with this plaintiff’s attorney, but was because of … another law firm representing a party in that action.”

         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]). A judge must disqualify him/herself in matters where the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]) or “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). But if disqualification is not mandated under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         With respect to the first asserted ground for disqualification, the judge has no recollection of the alleged admission and therefore is unlikely to be a material witness in any proceeding. Moreover, a judge is not necessarily disqualified in one proceeding merely because he/she has been called as a witness in another proceeding concerning matters he/she personally observed as a judge (see e.g. Opinions 15-53; 14-168; 09-172/10-31; 91-25).

         With respect to the second ground, while there certainly would be a problem if the judge had previously disqualified him/herself based on bias against the attorney or an ongoing conflict with this attorney (compare Opinion 14-189 with Opinion 14-121), the judge states that the grounds for his/her prior disqualification did not in any way involve that attorney. Clearly, a judge who disqualifies him/herself in one case solely based on a conflict with one particular law firm need not disqualify him/herself in all future cases involving that law firm’s adversaries. We note that a judge is not ethically required to disclose the reason for recusal (see Opinion 07-102).

         In sum, we conclude this judge need not disqualify him/herself merely because (1) he/she could potentially be called as a witness in another proceeding concerning a statement the judge does not recall hearing and (2) he/she once disqualified him/herself in another case involving the same attorney, due to an undisclosed conflict with another law firm. Accordingly, provided the judge can be fair and impartial in the present case, we conclude he/she may ethically preside.

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¹ By contrast, the judge’s law secretary recalls conducting a pre-trial conference at which something similar was said.