Opinion 20-34/20-35

March 19, 2020

Please Note: 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:         (1) Where a local attorney’s paralegal filed a disciplinary complaint against a judge, but the Commission on Judicial Conduct has not issued a formal written complaint, the judge need not disqualify him/herself from matters involving the complainant or his/her employer, provided he/she can be fair and impartial.

(2) If the Commission formally charges the judge with misconduct in a formal written complaint, the judge (a) must disqualify him/herself from matters in which the complainant appears; but (b) need not otherwise disqualify him/herself from matters involving the complainant’s attorney employer, where the judge is satisfied the attorney did not participate in making the complaint and the paralegal’s name does not appear on the papers and is unlikely to be present in the courtroom, provided the judge can be fair and impartial.

(3) The judge need not disclose the disciplinary complaint, whether or not recusal is required.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 19-39; 16-129; 07-102; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         A local attorney’s paralegal/secretary has filed a disciplinary complaint against the inquiring judge concerning allegedly improper campaign conduct. The allegations do not involve the attorney’s cases or clients, and there is no indication the attorney had any involvement whatsoever in preparing or filing the complaint. As the paralegal does not appear in court nor does his/her name appear on court papers, the judge asks about the judges’ obligations when the paralegal’s attorney employer appears.

         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]). Where, as here, disqualification is not mandated under a specific provision of the Rules Governing Judicial Conduct (see NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14, the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated by this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and thus may preside, unless he/she doubts his/her own impartiality in the case.

1. Initial Stage: The Commission Has Not Filed a Formal Written Complaint

         The judges first ask if they may continue to preside in matters involving the paralegal’s attorney employer at this time, given that the Commission has not formally charged them with misconduct.

         As noted in Opinion 16-129 (citations omitted), the mere filing of a complaint with the Commission

does not, by itself, require the judge’s disqualification, provided the judge concludes in his/her sole discretion, that he/she can be fair and impartial. Any other rule would allow — and perhaps encourage — individuals involved in litigation to use the disciplinary system, or collateral actions against a judge, as a means to disrupt the court process or “judge shop.”

         Thus, these judges also need not disqualify themselves from matters involving the paralegal complainant or his/her attorney employer at this time.

2. Subsequent Stage: The Commission Files a Formal Written Complaint

         The judges also ask if they may preside in matters involving the complainant’s attorney employer, if and when the Commission charges them with misconduct in a formal written complaint.

         As stated in Opinion 16-129 (citations, brackets, and footnotes omitted):

A formal written complaint reflects the Commission’s “determination that a hearing is warranted,” evidencing a degree of seriousness beyond mere judge-shopping concerns. Thus, if a judge believes he/she can be fair and impartial, the trigger for disqualification is the Commission’s issuance of a formal written complaint, i.e. “a writing, signed and verified by the administrator of the commission, containing allegations of judicial misconduct against a judge for determination at a hearing.” In other words, once the Commission issues a formal written complaint against a judge based on a litigant’s, attorney’s or witness’s complaint, the judge must disqualify himself/herself involving that complainant.

         Accordingly, if the Commission issues a formal written complaint based on the paralegal’s allegations, the judges must disqualify themselves in all matters involving the complainant. This may happen, for example, if the paralegal appears as a litigant or is called as a witness in a case.

         We reach a different conclusion with respect to the paralegal’s attorney employer. The attorney is not the complainant, and nothing in the inquiry suggests he/she had any involvement whatsoever in preparing or filing the disciplinary complaint. Particularly where, as here, the alleged misconduct relates to a judicial campaign, rather than the attorney’s practice, we see no reason to impute the paralegal’s conduct to the attorney.

         Accordingly, even if the Commission files a formal written complaint, as long as the judges are satisfied the paralegal acted independently of his/her attorney employer, we believe their impartiality cannot “reasonably be questioned” in matters involving the attorney (22 NYCRR 100.3[E][1]). Thus, each judge may preside in matters involving the attorney, if the judge decides he/she can be fair and impartial. This decision is confined to the judge’s sole discretion (cf. People v Moreno, 70 NY2d 403, 405 [1987]).

3. Disclosure

         Finally, whether recusal is required, the judges ask if they must disclose the paralegal’s complaint when the attorney employer appears.

         Recusal. A judge who disqualifies him/herself, without offering an opportunity for remittal, is not ethically required to explain the reason or basis for doing so (see Opinion 07-102; accord e.g. Opinion 19-39). Here, too, if a judge exercises recusal in a particular case — whether because (a) the complainant appears after the Commission issued a formal written complaint or (b) the judge doubts his/her ability to be fair and impartial — he/she need not disclose the basis for recusal. In either instance, he/she may simply recuse without disclosing the disciplinary complaint.

         Non-Recusal. On these facts, as noted above, the judges’ impartiality cannot reasonably be questioned in matters involving the paralegal’s attorney employer, based solely on the paralegal’s disciplinary complaint. Accordingly, disclosure is not ethically required when the attorney appears.