Opinion 21-59(B)

April 29, 2021

Digest:       Provided the judge can be fair and impartial, a judge who was publicly censured by the Commission on Judicial Conduct more than two years ago may preside in matters involving individuals who had testified on the judge’s behalf in the disciplinary proceeding. Disclosure is left to the judge’s discretion.

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 21-22(A); 20-20; 07-73; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge was publicly censured by the Commission on Judicial Conduct more than two years ago. The judge asks if they must continue to disclose and/or disqualify in matters involving attorneys or others who provided testimony on the judge’s behalf in that disciplinary proceeding.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify in a proceeding where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other circumstances required by rule or law (see generally id.; Judiciary Law § 14).

         Where a judge has been publicly disciplined, we said the judge remains disqualified, subject to remittal, for two years in matters involving either the complainant (see e.g. Opinion 20-22 [public censure]) or those who testified on the judge’s behalf (see Opinion 07-73 [formal admonition]).¹

         Since the inquiring judge was censured more than two years ago, our sole focus here is on what happens after that two-year period. In Opinion 07-73, we said that, even after the two-year period, a judge who was publicly admonished must continue to make full disclosure in matters involving attorneys who submitted character references on the judge’s behalf. We offered no guidance on when, if ever, this disclosure obligation would terminate. Moreover, we said the judge should ordinarily recuse if any party objects, “unless the judge concludes that the objection is frivolous, in bad faith, or is wholly without merit” (id.).

         On reconsideration, we believe this rule is too restrictive. Where the Commission issued its disciplinary decision more than two years ago, we believe the disciplined judge’s impartiality cannot “reasonably be questioned” in matters involving individuals who appeared as witnesses on the judge’s behalf (22 NYCRR 100.3[E][1]). Accordingly, the judge is “the sole arbiter of recusal,” and this “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Provided the judge is satisfied they can be completely fair and impartial, the judge may preside in matters involving individuals who appeared as witnesses on the judge’s behalf in a disciplinary proceeding that terminated more than two years ago. Disclosure is not mandated but is left to the judge’s sound discretion.

         Opinion 07-73 is hereby modified, consistent with this opinion, with respect to the judge’s obligations more than two years after the imposition of public discipline.

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¹ For clarity, we note that remittal is now available during this period even if a party is appearing without counsel (see Opinion 21-22[A]).