Opinion 21-49

March 11, 2021

Digest:    Whether a judge may order the disqualification of an attorney because of an ethical conflict, instead of deciding a pending motion filed by the attorney on behalf of the attorney’s client, is a question of law which this Committee therefore has no authority to address.

Rules:     Judiciary Law § 212(2)(l); 22 NYCRR 101.1; Opinions 08-02/08-45; 91-118.

Opinion:

         The inquiring judge presides in a criminal matter where an attorney filed a motion to vacate a judgment on behalf of a co-defendant who was sentenced following a guilty plea. The attorney previously represented another co-defendant in the case, and the judge believes the attorney now has a disabling conflict with the present client. The judge asks if it is ethically permissible to disqualify the attorney instead of deciding the motion on its merits.

         We have previously advised that a judge’s authority to disqualify an attorney from appearing in the judge’s court is a question of law, not judicial ethics (see Opinion 08-02/08-45). Moreover, disqualifications of an attorney may implicate the attorney-client relationship and the right to counsel, matters clearly beyond our mandate (id.; see also 22 NYCRR 101.1; cf. Opinion 91-118).

         We must therefore decline to answer the inquiring judge’s questions, as we have no authority to address them (see generally Judiciary Law § 212[2][l]).