Opinion 24-52
March 14, 2024
Digest: A judge who was a supervising assistant district attorney while the district attorney’s office investigated allegations of professional misconduct by an attorney colleague, but who was not involved in investigating or referring the attorney for discipline, is not disqualified from matters in which the attorney appears unless the judge believes he/she cannot be fair and impartial in those cases.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 23-50; 22-164; 22-122; 15-117; 15-69; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge previously served as an assistant district attorney with supervisory responsibilities. During the judge’s tenure, the judge was aware that others in the office were investigating an attorney colleague for possible criminal misconduct, but the judge had no involvement in the matter in a direct or supervisory capacity. The investigation concluded with a referral to the attorney grievance committee after the judge left the district attorney’s office. The judge asks if he/she may preside in matters involving this attorney.
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 disqualify in any proceeding “in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).
We have advised that a judge who personally made a complaint against an attorney to a disciplinary committee must disqualify in cases where the attorney appears, both during the pendency of the complaint and for two years thereafter (see e.g. Opinions 23-50; 22-122). Occasionally, where the judge was the impetus behind a disciplinary complaint filed by someone else, we have held a judge “to the same standard as if he/she had personally filed the complaint” (Opinions 15-117; 15-69; cf. Opinion 22-164 [“the judge may not circumvent these obligations by suggesting that Attorney A self-report”]). For example, in Opinion 15-117, the judge “encouraged successor counsel to report his/her predecessor” for dilatory and negligent conduct in a case before the judge, and “said he/she would personally follow through as necessary to ensure a disciplinary complaint was ultimately filed.” Under those circumstances, we concluded “the judge made clear he/she had decided reporting was warranted and would personally follow through” to achieve that end (id.).[1]
Here, by contrast, the inquiring judge had absolutely no involvement in investigating the attorney colleague or in deciding to file a disciplinary complaint against the attorney. On these facts, we see no reason to hold the judge to the same standard as if the judge had personally filed the complaint, merely because the judge was aware of the allegations, the investigation, and the ultimate disciplinary referral. Nor does the judge’s mere awareness of these matters in his/her prior professional capacity, without more, suggest any personal animus or bias against the attorney or any personal conclusion of wrongdoing. We conclude that under the circumstances the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]). Accordingly, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and may preside so long as the judge believes he/she can be fair and impartial.
[1] Opinion 15-69 appears to be relatively fact-specific, as it involved a court attorney-referee who personally observed a law firm’s misconduct while presiding pursuant to an order of reference issued by a referring judge. Although the referring judge ultimately filed the disciplinary complaint, the court attorney-referee “advised and spoke with the referring judge” and thus caused the complaint to be filed against the law firm (id.).