Opinion 24-156

October 30, 2024

Facts/Issue:  The Commission on Judicial Conduct has forwarded to the inquiring judge a copy of a complaint against him or her in connection with a pending criminal case, made by a high-level executive in the District Attorney’s office.  The Commission has not charged the judge with misconduct.  The complaint alleges that members of the District Attorney’s office have “tremendous fear of reprisals” from the judge, but the judge advises that he/she can remain fair and impartial.  The judge asks if he/she may (1) continue to preside in the pending criminal case and (2) preside in other matters being prosecuted by the District Attorney’s office.

Discussion:   We have consistently advised that an attorney’s decision to file a complaint with the Commission on Judicial Conduct does not, by itself, require disqualification of the judge.  A judge may continue to preside in matters involving that attorney, the office they work for, and attorneys they supervise as long as the judge can be fair and impartial, even if the complaint remains pending and the Commission is investigating the matter.  Indeed, where the Commission has not issued a formal written complaint, the judge remains the sole arbiter of recusal and must search his or her own conscience to determine if he or she can preside impartially and without any bias concerning the complainant(s). 

                   Of course, if the Commission moves beyond the investigative stage and charges the judge with misconduct in a formal written complaint pursuant to Judiciary Law § 44(4), the judge must promptly disqualify from all matters involving the complainant and his or her subordinates.  The disqualification lasts at least while the disciplinary proceeding is ongoing and sometimes longer.

Conclusion:  Where a judge can be fair and impartial and the Commission has not filed formal charges against him or her, the judge may continue to preside in matters involving the District Attorney’s office even though a high-level executive of that office has filed a disciplinary complaint against the judge in connection with a pending criminal case. 

Authorities:  Opinions 22-82; 20-22; 20-163; 17-17; 16-129.