Opinion 21-174

December 2, 2021

Digest:        (1) Provided the judge can be fair and impartial in the underlying criminal case, the judge need not disqualify if the judge or their law clerk cooperate as fact witnesses in a police investigation concerning a bench conference in which an active state trooper was identified solely as defense counsel’s “associate.” (2) The judge also need not insulate the law clerk, provided the judge is satisfied the law clerk can be fair and impartial.

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 19-39; 15-53; 14-168; 09-172/10-31; 91-25; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge asks about possible disqualification and/or insulation requirements if the judge or their law clerk cooperate as fact witnesses in a police investigation concerning an incident that occurred during a recent bench conference on a criminal matter. During the conference, defense counsel identified a particular individual as their “associate” and a former state trooper. The “associate” indicated that they had attended law school while working for the state police. The police have now asked to interview the judge and court staff about the incident, because the “associate” is a current state trooper who allegedly called in sick in order to attend the court proceeding. The judge notes that the investigation could potentially implicate defense counsel and/or the “associate.”

         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 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]).

         We have previously observed that “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” (Opinion 19-39). For example, we advised that a judge need not disqualify from a civil action after testifying in a separate criminal proceeding, pursuant to a subpoena, about the orders and directives the judge issued in the civil action, unless the judge believes they cannot be impartial (see Opinion 15-53). This remains true “even though the judge’s testimony is adverse to one of the litigants in the civil action” (id.).

         Nor need a judge disqualify from a criminal matter, merely because “the judge was a witness in a separate perjury proceeding, against the defendant” based on untrue statements made by the defendant in a motion seeking the judge’s recusal (Opinion 91-25). As another example, we said that a criminal court judge who testifies as a fact witness in a different court on behalf of a criminal defendant’s adversary about the criminal defendant’s physical condition at arraignment may continue to preside in the pending criminal matter involving the same defendant, unless the judge believes they cannot be impartial (see Opinion 09-172/10-31). Likewise, a judge asked if they could preside “in two family court matters involving the same parties,” given that “one parent is the complainant in a criminal case against the other parent” and the prosecutor has subpoenaed the judge “to testify in the criminal case to confirm that [they] presided in the custody proceeding and, if possible, to identify the parent/defendant’s voice on an audio recording of the custody proceeding” (Opinion 14-168). Citing prior opinions, we said the judge need not disqualify from the family court matters after testifying as a fact witness in the new criminal case, provided the judge concludes they can be fair and impartial (id.).

         The principle is not without limitations, as we explained (Opinion 15-53 [citations omitted]):

Disqualification would be required, of course, if the inquiring judge were to obtain extra-judicial knowledge of disputed evidentiary facts in the case pending before him/her or if the judge were likely to be a material witness in that case. For example, where a particular post-nuptial agreement was “the subject of the current divorce proceeding” before the judge, the Committee has advised that the judge must disqualify him/herself after he/she was asked to cooperate in a criminal investigation involving the legality of that very agreement which was before the judge.

         On the facts presented, we conclude that neither the judge nor their law clerk is likely to gain impermissible extra-judicial knowledge of disputed evidentiary facts in the underlying criminal case, merely by relating the facts the judge and law clerk observed during the bench conference. Nor is it likely to make them material witnesses in the underlying criminal matter. Indeed, the defendant’s guilt or innocence cannot possibly depend on whether or not their counsel’s purported “associate” acted improperly by calling in sick to attend a court conference and/or by moonlighting as an attorney, and whether or not defense counsel acted improperly in identifying a current state trooper as their “associate.”

         Accordingly, provided the judge concludes they can be fair and impartial in the underlying criminal matter, the judge need not disqualify if the judge or their law clerk cooperate as fact witnesses in the police investigation. Provided the judge is satisfied the law clerk can be fair and impartial, the judge also need not insulate the law clerk.