Opinion 23-226

May 9, 2024

Digest:  (1) If a judge is currently disqualified in matters involving an attorney, he/she may not appoint that attorney as assigned counsel or attorney for the child during any such disqualification period. 

            (2) A judge who is not disqualified from matters involving an attorney must exercise his/her discretion impartially when deciding whether to appoint the attorney, with an eye to avoiding even the appearance of any improper motivation.

Rules:   22 NYCRR 100.2; 100.2(A), (B); 100.3(C)(1), (3); Opinions 21-22(B); 20-09; 17-127; 09-43; 92-13.

Opinion:

          The inquiring judge asks if it is ethically permissible to “pass over” an attorney for appointment as assigned counsel or as attorney for the child.  The judge explains these appointments “are made to represent a litigant for the pendency of the action.”  The clerk typically provides the judge with “the next three names” from the panel list “on a rotation basis” and asks the judge to select one.  In response to our request for “all the reasons why you do not wish to appoint this attorney,” the inquiring judge stated: “The attorney spread blatant untruths about me during my campaign.  I do not know what animus [the attorney] may still harbor against me, and taken into consideration with [his/her] lack of credibility, I am concerned that [he/she] might compromise the representation of [his/her] client.”

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must “discharge the judge’s administrative responsibilities without bias or prejudice” (22 NYCRR 100.3[C][1]), must “not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]), and must make appointments “impartially and on the basis of merit” (22 NYCRR 100.3[C][3]).  A judge must also “avoid nepotism and favoritism” in making appointments (id.).

          We have recognized that “[a] judge’s specialized learning, experience and judicial discipline render him/her uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 20-09 [citations and quotation marks omitted]).  When a decision “is left to the judge’s discretion, the judge is necessarily acting in a judicial capacity in searching his/her conscience” regarding the decision and the judge “must not be swayed by partisan interests, public clamor or fear of criticism or other impermissible considerations” (id. [citations omitted]). 

          We note preliminarily that if the judge is currently disqualified in matters involving the attorney for any reason, the judge cannot appoint him/her as assigned counsel or attorney for the child during any such disqualification period (see e.g. Opinions 21-22[B]; 17-127; 09-43).

          Assuming the judge is not currently disqualified from matters in which this attorney appears, the judge has very wide discretion to appoint or not appoint this attorney, provided he/she does so “impartially and on the basis of merit” and avoids improper considerations (22 NYCRR 100.3[C][3]).  We understand that the judge believes the attorney spread “blatant untruths” about the judge, and we observe that non-judges who are not themselves seeking election to judicial office sometimes, unfortunately, resort to partisan hyperbole or distortions in the heat of an election campaign.  The judge must carefully consider whether deliberately passing over this attorney for appointments, after the attorney publicly opposed the judge in a recent election campaign, could potentially be perceived by the public as retaliation for criticizing the judge, notwithstanding that a judge “must expect to be the subject of public scrutiny and, therefore, must accept criticism, however merciless, that might be viewed as opprobrious by the ordinary citizen” (Opinion 92-13).  We are not an investigatory body, and we cannot assess all relevant circumstances for this judge.  Thus, we are not in a position to tell the judge how to exercise his/her discretion, other than to remind the judge that appointment decisions must be made impartially, with an eye to avoiding even the appearance of improper motivations.