Opinion 22-112
June 30, 2022
Digest: A judge must disqualify in matters involving the law firm partners and associates of an attorney who testifies on the judge’s behalf in a disciplinary proceeding, both during the proceeding and for two years after its conclusion. During this period, the judge’s disqualification is subject to remittal, provided the judge can be fair and impartial and strictly complies with all requirements for remittal.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 21-59(B); 21-22[A]; 20-82/20-86; 20-22; 15-37; 07-73; 00-97; 90-66; 89-154; NY St Bar Assn Comm on Prof Ethics Op 602 (1989).
Opinion:
The inquiring judge is presently involved in a disciplinary proceeding before the Commission on Judicial Conduct.1 An attorney who currently has several cases before the judge was called to testify in the proceeding on behalf of the judge. The judge plans to recuse from matters involving this attorney witness, but asks about their obligations when the attorney’s partners and associates appear before the judge.
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]). Thus, a judge must disqualify in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).
With respect to an attorney who testified on the judge’s behalf in a judicial disciplinary proceeding, the judge is disqualified in matters where that attorney appears both during the disciplinary proceeding and for two years after its conclusion (see Opinions 21-59[B]; 07-73; 00-97). During this period, if the judge can be impartial and is willing to preside in the matter, the judge may offer the parties and their counsel an opportunity to consider remittal of disqualification (see Opinions 07-73; 00-97; 22 NYCRR 100.3[F]).
As for whether a judge must disqualify in matters involving the partners and associates of an attorney who testified on behalf of the judge, we take a fresh look here. In Opinion 89-154, we said the judge must disqualify “in all matters involving attorneys who testified at the hearing as well as in all matters involving law firms or the offices of the district attorney or public defender, whose members or associates testified at the hearing.” We adhered to that view on an administrative judge’s request for reconsideration, and further said the judge’s disqualification was not subject to remittal on those facts even if both parties consent after full disclosure (see Opinion 90-66). Moreover, although Opinion 00-97 focused on the judge’s obligations with respect to the testifying attorney, we nonetheless cited approvingly the views of the New York State Bar Association Committee on Professional Ethics on a judge’s obligations when the law firm colleagues of “an attorney who had been subpoenaed to testify before the Commission on Judicial Conduct” appeared on an unrelated matter before the judge (see Opinion 00-97; NY St Bar Assn Comm on Prof Ethics Op 602 [1989]).2 Although we recognized the bar association opinion was “not binding” on us, we noted that it “is consistent with our opinions in this area” (id. [citations revised and reformatted for clarity]):
The Association stressed that “[n]ot only must there be no partiality in fact, even the appearance of partiality is to be avoided” (NY St Bar Assn Comm on Prof Ethics Op 602 [1989]). The opinion continues: “Because we believe that the judge should not preside over cases in which the witness appears and it is reasonable to assume that other lawyers in the witness’ firm share the witness’ knowledge, we find that the judge should also recuse himself from presiding over cases in which the witness’ partners and associates appear” (id.).
Even though the attorney who appeared before the court in N.Y. State 602 was only the partner of the witness who was subpoenaed to testify before the Commission, the Association concluded that as “a matter of judicial ethics, the judge has a choice. He may disqualify himself and say nothing; or he may make full disclosure, and leave it to the litigants and their counsel to decide whether to remit his disqualification” (id.).
We again conclude that a judge’s impartiality can “reasonably be questioned” when the judge knows that an attorney appearing before the judge is a law firm colleague of an attorney who testified on behalf of the judge in a disciplinary proceeding (22 NYCRR 100.3[E][1]; Opinions 90-66; 89-154). Of particular note, if the connection is not disclosed, litigants may be concerned that the judge might either unconsciously favor that law firm in gratitude for much-needed support at a critical professional juncture, or else inadvertently “over-correct” in an attempt to avoid potential bias. Thus, this judge is likewise disqualified in matters involving the partners and associates of the attorney witness.
With respect to the availability of remittal, we have previously recognized that the facts in Opinions 90-66, 89-154 and 15-37 involved “extraordinary rancor” and the witnesses were apparently testifying against the judge (see Opinion 20-22 [distinguishing these prior opinions and permitting remittal]). Here, too, we conclude the judge’s disqualification is subject to remittal in matters involving the partners and associates of the testifying attorney (cf. Opinions 07-73; 00-97), provided the judge “concludes he/she can be fair and impartial” and “strictly complies with all requirements for remittal” (Opinion 20-22). As always, remittal is not available unless the judge makes full disclosure on the record of the basis of disqualification and the parties and (if represented) their counsel voluntarily and affirmatively consent on the record to the judge presiding (see e.g. Opinions 21-22[A]; 20-82/20-86). We note that full disclosure requires far more than a “terse and conclusory abstract” (Opinion 20-82/20-86 [proposed post-discipline disclosure is insufficient where it “fully describes neither the gravamen of the underlying misconduct nor the root of the conflict from which the judge’s impartiality might reasonably be questioned”]).
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1 We understand the charges under consideration relate to the judge’s alleged extra-judicial activities.
2 The bar association opinion is available at https://nysba.org/opinion-602/ (visited 8/3/2022).