Opinion 22-173

December 15, 2022

Digest:       (1) Where an appellate judge successfully sought to vacate a vexatious lien filed by a disgruntled litigant against the judge’s real property, the judge may nonetheless preside over appeals from other decisions or orders rendered by the lower court judge who granted the petition to vacate, provided the appellate judge can be fair and impartial.
(2) While an appellate judge is the uncompensated administrator and sole beneficiary in a relative’s uncontested estate proceeding, the judge need not recuse from appeals involving other orders or decisions issued by the Surrogate overseeing the estate proceedings or from appeals involving the Public Administrator and/or its counsel, provided the appellate judge can be fair and impartial. However, disclosure is required at a suitable point in the appeal, whether in writing or from the bench.  

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 20-148; 20-25; 19-81; 16-24; 14-58; 98-29.

Opinion:

         The inquiring appellate judge was recently the subject of a vexatious lien filed by a disgruntled litigant and is also currently serving as administrator for the estate of a relative in an uncontested proceeding. The judge asks for guidance on certain potential conflicts relating to these circumstances.

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]). Thus, a judge must disqualify him/herself in any proceeding in which the judge's impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) and in other specific circumstances as required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).

Judge as Recent Petitioner to Vacate a Vexatious Lien

         The inquiring judge recently prevailed in a petition to vacate a vexatious lien, i.e. a lien filed by a disgruntled litigant against the judge’s property as a result of the judge’s routine performance of judicial functions. The judge asks if there is any ethical prohibition in presiding over appeals from other decisions or orders rendered by the lower court judge who granted the petition to vacate the lien.

         Although this appears to be a matter of first impression, we turn to our precedent for guidance. One line of opinions involves the obligations of a judge who was either a victim of or witness to a crime, with respect to those individuals who are involved in the criminal matter solely in their professional capacities. We have said that a judge who obtained an order of protection against an individual may nonetheless preside in unrelated matters involving “prosecutors, defense counsel, and police or probation officers” who were involved in the case solely in their professional capacities (see Opinion 20-148). Similarly, we have said that despite the judge’s status as a witness to a crime against the judge’s child, the judge may preside in unrelated matters involving attorneys prosecuting and defending the accused, including while the criminal case is pending (see Opinion 20-25).

         A second line of opinions involves the obligations of a judge who is subject to threats, harassment, or vexatious liens from a litigant as a result of the judge’s performance of judicial duties. In this context, where a criminal defendant files a putative multi-million-dollar lien against the judge’s property, we have advised that the judge may continue to preside in the underlying criminal case, provided the judge can be fair and impartial (see Opinion 14-58). Likewise, a judge is not necessarily disqualified from presiding over matters merely because a litigant threatens or attempts to file a fraudulent lien, provided the judge believes he/she can be fair and impartial (see Opinion 19-81).

         We perceive no ethical reason to apply a different standard here, as the lawsuit in question involved an application to vacate a vexatious lien filed due to the inquiring judge’s judicial status, and the lower court judge was involved in the matter solely in their own independent professional capacity as a sitting judge.

         Therefore, we conclude that this judge may preside over appeals from the lower court judge’s decisions and orders, provided the judge determines he/she can be fair and impartial, a matter confined solely to the conscience of the inquiring judge (see Opinion 14-58).

Judge as Uncompensated Administrator and Sole Beneficiary in Uncontested Estate Proceeding

         The inquiring appellate judge also serves as an uncompensated administrator in an uncontested estate proceeding for a first-degree relative. The judge is the sole intestate beneficiary of the estate, and neither the Public Administrator nor its counsel have taken a position in the proceeding. The judge asks if it is necessary to disqualify from appeals involving the Surrogate presiding over the pending estate proceeding, the Public Administrator, and/or its counsel.¹

         Again, this matter appears to be one of first impression for the Committee. As in most situations where a judge may be entitled to a distribution of monies, we proceed with caution. At this time, the matter is an uncontested estate proceeding, with the judge as the sole anticipated beneficiary, and neither the Public Administrator nor its counsel have taken a position adverse to the judge. We draw a very rough analogy to Opinion 16-24, in which an attorney was holding the judge’s money in escrow “for the purpose of paying rent” on a residence where the judge’s child and the attorney’s child were living. On those facts, we reasoned that “if the escrow transaction ultimately proves amicable, so the funds are disbursed with no controversy, it is unlikely to call the judge’s impartiality into question” (id.). Thus, we concluded the judge need only “disclose the ongoing relationship” while an attorney appearing before the judge is currently holding money in escrow for the judge (id.). Moreover, if the escrowed funds are released without controversy, we said the disclosure obligation ends when the escrow arrangement terminates (see id.).

         Where, as here, the estate proceedings are uncontested, the judge is serving without compensation, and there is likely little chance of any dispute concerning the distribution of the estate funds, we conclude the judge’s impartiality cannot “reasonably be questioned” in unrelated appeals involving the specific Surrogate, Public Administrator, and/or its counsel involved in the judge’s pending estate proceeding, provided the judge can be fair and impartial.

         We consider disclosure in this circumstance a best practice. Therefore, this appellate judge must disclose the judge’s ongoing uncontested estate matter at a suitable point in appeals from orders or decisions issued by the Surrogate’s Court overseeing the judge’s estate proceeding or appeals involving the Public Administrator and/or its counsel (cf. Opinion 16-24). We emphasize that, even if disclosure is made from the appellate bench and an attorney or party objects to the judge’s participation in the appeal, recusal remains exclusively in the judge’s sole discretion (id.).

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¹ Remittal may not be practicable in an appellate court, as disclosure of the basis for disqualification before submission or argument of the appeal may not be feasible (see Opinion 98-29).