Opinion 22-166

December 15, 2022

Digest:       Where a part-time attorney judge unknowingly arraigned a defendant who was a complaining witness against one of the judge’s clients in an unrelated case, but then, on discovering the conflict, immediately transferred the matter to the co-judge and notified all parties, the judge need not take any further action.

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 21-15; 17-181; 15-147; 13-54; 07-212.

Opinion:

         A part-time attorney judge, who presides in criminal matters, states that their court has a conflicts-check system in place that is “continually used.” After an initial conflicts check, the judge arraigned a defendant, took statutorily required steps pursuant to the charges, and adjourned the matter for several weeks. A successive conflicts check before the next return date revealed that the arraigned defendant is a complaining witness against one of the judge’s clients in an unrelated matter the judge is handling in another court. Upon discovering the conflict, the judge promptly transferred the case to their co-judge, and notified the defense attorney, assistant district attorney and the judge’s client of what occurred. The judge now asks if any further action must be taken.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge is therefore disqualified in specific circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         We have advised that while a judge need not undertake extraordinary measures, they “must adopt reasonable procedures” to avoid conflicts (see e.g. Opinions 21-15 [matters involving law enforcement agency headed by judge’s first-degree relative]; 13-54 [matters involving “current and recent former clients” of the judge’s law firm]).

         However, even where a judge has adopted such reasonable procedures, there may be times when a judge has nonetheless inadvertently presided over a matter where recusal would have been appropriate (see e.g. Opinions 13-54; 15-147). The judge’s obligations in such circumstances depend on the facts presented. For example, we advised that a judge who inadvertently presided in a matter involving a recent former client, and received multiple ex parte communications from the former client after deciding the matter adversely to the former client, must make full disclosure to both sides by letter to counsel and then disqualify from any post-trial, post-judgment applications and any other proceedings in the matter (see Opinion 17-181).

         Here, it appears the judge’s conflict-check system initially failed to reveal that the defendant was adverse to the judge’s client in another court, and the judge did not recognize the individual or draw the connection during or after the arraignment. Before the defendant’s second appearance, however, the conflict-check system alerted the judge to the conflict. The judge promptly transferred the case to their co-judge, and notified both sides of what occurred (cf. Opinion 07-212).

         There is no indication that the judge was aware of the relationship while conducting the arraignment or that the judge questions the legal correctness of the decision, and the judge has already disqualified from the case and informed all counsel. Accordingly, we conclude the judge need take no further action here, as the case is “no longer before the judge and will not return to him/her” (Opinion 15-147; see also Opinions 17-181; 13-54).