Opinion 24-163

October 30, 2024

Digest:  Provided the judge can be fair and impartial, he/she need not disqualify in matters involving an attorney who accused the judge of personal animosity against the attorney and demanded the judge’s recusal. 

Rules:   Judiciary Law § 14; 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.3(D)(2); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 24-137; 23-70; 21-131; 20-213; 20-61; 20-09; 19-81; 19-35; 18-58; 13-61; 10-85; 98-69; 92-114/92-127; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring judge received a letter from an attorney claiming that the judge has “personal animosity and professional disrespect” for the attorney and demanding the judge’s recusal henceforth.  Indeed, the attorney says he/she will seek the judge’s recusal in “a publicly available motion” the next time he/she represents a client before the judge, unless the judge agrees privately to recuse.  The judge disagrees with many factual assertions set forth in the letter, as well as the attorney’s interpretation of them.  Moreover, the judge is confident he/she can be fair and impartial in cases where the attorney appears.  Although the attorney does not currently have any cases pending in the judge’s court, the judge asks if it is necessary to “take any action” regarding the letter and/or to disqualify based on the letter if the attorney makes a recusal motion in a future case.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must uphold the judiciary’s independence (see 22 NYCRR 100.1) and must not “convey or permit others to convey the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]).  A judge must disqualify from any matter “in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by rule or statute (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).  Where objective standards do not mandate disqualification, however, the judge remains the sole arbiter of recusal.

1. Disqualification

          We have consistently eschewed disqualification rules that would promote judge shopping.  As we stated in Opinion 92-114/92-127:

There is no ethical requirement that the judge disqualify himself or herself merely by virtue of the fact that people who appear before the judge have been saying harsh things about the judge and conducting a campaign against him or her.  This is not grounds for disqualification unless the judge doubts that he or she can be impartial.

Thus, judges need not disqualify merely because attorneys or litigants accuse them of bias (see e.g. Opinions 23-70; 98-69) or otherwise subject them to criticism, threats, or lawsuits (see e.g. Opinions 24-137; 20-61; 20-09; 19-81; 19-35). 

          Here, too, we conclude the inquiring judge’s impartiality cannot reasonably be questioned in matters involving this attorney, merely because the attorney sent the judge a letter accusing the judge of personal animosity and demanding the judge’s recusal.  Accordingly, the judge need not disqualify on this basis, provided the judge can be fair and impartial.  Of course, the judge must disqualify if the judge concludes, in his/her sole discretion, that he/she has a personal bias or prejudice, or that specific circumstances create an appearance of impropriety in a matter (cf. People v Moreno, 70 NY2d 403, 405 [1987] [“This discretionary decision is within the personal conscience of the court”]).

          While we understand the judge here is not considering the attorney’s suggestion that the judge “agree” privately with the attorney to recuse on certain matters, we note for completeness that such an agreement could impinge on judicial independence and create an impression that the attorney is in a special position to influence the judge (see Opinion 21-131).

2.  Disciplinary Obligations

          As the judge also asks if he/she must “take any action” regarding the attorney’s letter, we briefly review applicable principles here.  A judge’s disciplinary responsibilities with respect to an attorney involve an initial two-prong test: Has the judge received information indicating “a substantial likelihood” that the attorney has committed “a substantial violation” of the Rules of Professional Conduct (22 NYCRR 100.3[D][2])?  This determination ordinarily 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 this two-prong test is met, the judge must take “appropriate action” (22 NYCRR 100.3[D][2]).  The exact nature of what action is “appropriate” under the circumstances is also likewise left to the discretion of the judge (see Opinions 18-58; 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. Opinions 20-213; 13-61).  Otherwise, the judge has full discretion to determine what constitutes “appropriate action” upon the judge’s own evaluation of all relevant and known circumstances. 

          On the facts presented, this judge has full discretion with respect to each step of the analysis.  Thus, if the judge concludes that either prong is not met, the judge need not take any action at all; if the judge concludes both prongs are met, he/she may determine what action is appropriate under the circumstances.

          As a reminder, should the judge ultimately refer the attorney to the grievance committee, the judge must disqualify in all cases involving the attorney while the disciplinary matter is pending and for two years thereafter (see e.g. Opinion 20-213).