Opinion 21-86
June 17, 2021
Digest: (1) A judge who reported a government attorney to the grievance committee must disqualify in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter. (2) What the judge must state on the record or in writing pursuant to Judiciary Law § 9, when confidentiality has not been waived, is a legal question we cannot resolve. (3) If the judge believes the attorney’s appearance on a case that had previously been handled by another colleague in the same governmental law office constitutes impermissible judge-shopping, the judge may report this conduct to the grievance committee.
Rules: Judiciary Law §§ 9; 90(10); 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 21-45; 20-151; 17-56.
Opinion:
The inquiring part-time judge filed a grievance against an attorney in a governmental law office. Shortly after the disciplinary matter concluded, within the two-year mandatory disqualification period, the reported attorney suddenly appeared in a case before the judge which had previously been handled by a different colleague. The judge considers this new appearance unusual, because the reported attorney is not regularly assigned to the judge’s court and had no evident prior connection with the case. Accordingly, the judge is concerned that the case may have been reassigned within the government law office as a strategic effort to take advantage of the judge’s conflict and force the matter to be transferred to another judge. The judge thus asks whether it is permissible to remain on the case to discourage potential “judge shopping.” If disqualification is still required, the judge asks “what must I state on the record or in writing to justify my decision knowing that no reference can publicly be made to the filing of the grievance?”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a matter that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Accordingly, a judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]).
When a judge “files a formal or informal complaint against [an] attorney, the judge must disqualify him/herself in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter” (Opinion 17-56 [citation omitted]). We see no reason to deviate from this clear and unambiguous rule on the facts presented. Therefore, the inquiring judge must continue to disqualify in matters involving the reported attorney for the specified period.
Although we “previously advised that a judge who reports an attorney to the grievance committee must not disclose the reason for the recusal unless the attorney waives confidentiality or the matter results in public discipline,” Judiciary Law § 9 now says a judge must “provide the reason for [the judge’s] recusal in writing or on the record” unless an exception applies (Opinion 21-45). How to resolve the apparent conflict between Judiciary Law § 9 and our prior decisions, which in turn relied on Judiciary Law § 90(10), is a legal question. As we explained in Opinion 21-45 (citations omitted):
Resolution of the dissonance between these two sections of the Judiciary Law is a legal question we must decline to answer. Thus, whether a judge who has reported an attorney to the grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, likewise presents a primarily legal question we cannot resolve.
Here, too, what the judge must state on the record or in writing pursuant to Judiciary Law § 9, when confidentiality has not been waived, is a legal question we cannot address (see generally Judiciary Law § 212[2][l]).
Finally, we have previously noted that bad-faith conduct in making an effort to “force” a judge’s disqualification on a matter may be reported to the attorney grievance committee (see Opinion 20-151, fn 1). Thus, if the inquiring judge concludes that the attorney’s appearance is part of an impermissible “judge shopping” effort, the judge may make another report to the grievance committee.