The inquiring judge is presiding in a dispute between a plaintiff lender and certain borrower and guarantor defendants involving a specialized form of commercial real estate financing. In the course of the proceeding, the judge has already ruled on a series of contested motions, and at least one of those decisions has already been addressed on appeal. One defendant’s counsel now asks the judge to recuse on multiple grounds. The judge already ruled as a matter of law that three asserted grounds did not require disqualification: (1) the judge’s prior legal practice as an attorney in the area of commercial real estate; (2) the judge’s prior judicial decisions in this particular case; and (3) the judge’s expressed concerns about a party’s conduct, whether from the bench or in written opinions, during the course of this proceeding. Now a fourth ground has been brought to the judge’s attention. Apparently, the judge’s first-degree relative¹ is a real estate broker for a non-party real estate company that does business with the plaintiff. The judge states that the judge’s relative has had no personal contact with the plaintiff lender in decades and the relative’s employer is “not likely to be a witness in this case and has no interest in the outcome of the case.” According to the judge, there is nothing to suggest that the outcome of the case “would have any effect” on the relative’s employer, or any of its interests, or any of its officers or employees (including the judge’s relative). On these facts, the judge asks if disqualification is ethically required.

The judge also asks if it is necessary to “do anything” regarding the disqualification requests by plaintiff’s counsel.² The judge subsequently clarified that the defendant’s counsel is making unfounded accusations in the motion for disqualification in an apparent effort to create an issue on appeal. Thus, the judge would like guidance on whether the judge is ethically required to report the defendant’s counsel.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). In addition, a judge is disqualified in situations where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by rule or law (see Judiciary Law § 14). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]). If a judge receives information indicating a “substantial likelihood” that an attorney has committed a “substantial violation” of the Rules of Professional Conduct, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]).

With respect to the first three asserted grounds for disqualification, a simple answer suffices. The judge has already decided the questions of whether disqualification is required as a matter of law. As we have repeatedly advised, a good-faith legal determination by a judge in a dispute is per se ethical. To that extent, the judge’s inquiry on each of these questions is moot.³

On the facts presented, the judge’s relative’s employment does not create a disqualifying conflict. We do not see any indication that the judge’s relative and/or the relative’s employer (both non-parties with no relevant information about the case) somehow has interests that “could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][d][iii]). Nothing in the inquiry suggests that the judge’s relative or the relative’s employer will receive any direct or indirect compensation or benefit, or have any interests affected, as a result of the litigation. Accordingly, the judge may preside as long as the judge determines he/she can be fair and impartial.

Finally, the judge asks whether the conduct of the attorney, in making unfounded accusations in applications to the court, warrants reporting to the disciplinary authorities. In that regard, the determination of whether there is a substantial likelihood that an attorney has committed a substantial violation of the Rules of Professional Conduct rests within the discretion of the judge, who is “in the best position to evaluate and assess all relevant, known circumstances” (Opinion 18-58). If the judge concludes that this two-prong test is met, then the judge must take some action, but the exact nature of what action is “appropriate” under the circumstances is left to the discretion of the judge (see e.g. Opinions 21-78; 19-90; 10-85). Only in those few instances where a judge concludes that the alleged misconduct is so egregious that it seriously calls into question the attorney’s honesty, trustworthiness or fitness to practice law is a judge required to report the attorney to the appropriate grievance committee (see e.g. Opinion 20-213). Otherwise, the judge has full discretion to determine what constitutes “appropriate action” upon the judge’s own evaluation of all relevant and known circumstances.

Here, too, we conclude that the judge may determine whether or not it is necessary to take any disciplinary action based on the judge’s own assessment of the above-referenced factors and, if so, what action is appropriate. If the judge concludes the two-prong test is not met, the judge need not take any action at all. If the judge concludes the two-prong test is met but also concludes that the conduct is not “egregious” and does not raise truly serious concerns about the attorney’s honesty, trustworthiness or fitness to practice law, the judge has the discretion to do something less than reporting to the grievance committee. For example, the judge could simply admonish or sanction the attorney or take other remedial steps.

As a reminder, if the judge decides to report the attorney to a grievance committee, the judge must disqualify in all matters where that attorney appears, both during the pendency of the disciplinary proceeding and for two years thereafter (see e.g. Opinion 22-123).

¹ A first-degree relative includes the parents, step-parents, children and step-children of the judge or the judge’s spouse.

² We cannot respond to questions that are very broad, vague, or general in nature or undertake review of lengthy submissions (see e.g. Opinions 16-12 [declining to review a “lengthy proposed statement,” as “the Committee ... is not in a position to review, edit or otherwise approve/disapprove such texts”]; 09-48 [“If there is a particular activity about which you have concerns, please submit a detailed inquiry to the Committee regarding that activity”]).

³ Of course a judge’s involvement in a general area of law before elevation to the bench does not automatically compel disqualification when a similar issue comes before the judge. In Opinion 10-190, for example, we said a town justice who previously served on the town board need not disqualify when town laws and ordinances come before the judge, even if the judge voted on them as a town board member.