Opinion 89-154

April 5, 1990

Digest:         On the particular facts presented, a judge should disqualify himself in all matters handled by attorneys who previously had testified at a hearing involving the judge before the Commission on Judicial Conduct where the hearing resulted in a public censure of the judge; in some circumstances disqualification also is required where associates of such attorneys appear.

Rules:          22 NYCRR 100.2, 100.3(d); Canons 3(C)(1), 3D, Code of Judicial Conduct; N.Y. State Bar Association, Committee on Professional Ethics, Opinion 602.

Opinion:

         An administrative judge, whose responsibilities include assignment of judges in his judicial district, requests the Committee’s ethical advice concerning a situation that has arisen in a county in that district. An issue has been raised (see Opinion 602 of the committee on Professional Ethics of the New York State Bar Association (10/26/89)), whether one of two county-level judges in the county, the judge who normally presides over the trial of all felony proceedings, may be required to disqualify himself in every criminal proceeding.

         In addressing this question, the Committee emphasizes that this Opinion is based upon the particular factual circumstances, and should not be deemed a precedent for a situation where any of the essential facts differ substantially from those stated.

         The essential facts are these:

         Several local private attorneys, as well as several attorneys employed in the district attorney’s and public defender’s offices, testified in a proceeding brought by the Commission on Judicial Conduct in which the judge was a respondent, following which the judge was publicly censured by the Commission. The question presented is whether the judge is required to disqualify himself in all actions where the district attorney the public defender, attorneys in their respective offices, the local witness attorneys, or their law firms, appear.

         The judge, who is the only judge presiding in the county-level court vested with criminal jurisdiction, is in daily contact with attorneys associated with the district attorney’s and public defender’s offices. Since his career could have been affected by the testimony of the attorneys who testified at the Commission hearing, his impartiality reasonably may be questioned with respect to these attorneys. Therefore, it is clear that the judge should disqualify himself in all matters where the individual attorney-witnesses who testified at the hearing appear before the judge.

         While it is the Committee’s view that, as a general rule, disqualification in such a situation would not be required invariably with respect to the offices of a district attorney or public defender, provided that no attorney appearing from either office personally testified at the Commission hearing, unless the judge believed he could not be impartial under any circumstances where either agency is involved, the Committee feels that under the particular facts of this case, disqualification is required in any case where either office appears, at least for a reasonable time, perhaps two years, from the date of the public censure. The reason for this is that both the district attorney’s office and the public defender’s office in this small county are themselves quite small and because the scope of involvement of both offices in the events leading up to and including the Commission hearing apparently was high, making the risk of mutual hostility also high, at least in the public perception. The public must be assured that criminal proceedings in the county will not be affected by rancor or favor.

         Section 100.2 of the Rules of Chief Administrator of the Courts (22 NYCRR 100.2) requires a judge to avoid “impropriety and the appearance of impropriety” and to “conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” In the above-cited Opinion 602, the Committee on Professional Ethics of the New York State Bar Association discussed the issue of judicial disqualification in cases involving law partners or associates of a witness who testified before the Commission, and stated:

Because we believe that the judge should not preside over cases in which the witness appears and it is reasonable to assume that other lawyers in the witness’ firm share the witness’ knowledge, we find that the judge should also recuse himself from presiding over cases in which the witness’ partners and associates appear. The need for recusal flows from a recognition of the special knowledge of the judge’s situation and the “reasonable perception” of partiality similar to that which would be obtained if the witness himself were to appear before the judge.

         As it applies to the circumstances of this case, this Committee concurs with the above-quoted passage. Accordingly, the judge should disqualify himself in all matters involving attorneys who testified at the hearing as well as in all matters involving law firms or the offices of the district attorney or public defender, whose members or associates testified at the hearing.

         However, the Committee reiterates that this Opinion (89-154) addresses only the fact situation presented in this inquiry. The Opinion in no way implies, for example, that judicial disqualification would be necessary to this same extent in a large county with large public legal agencies and large law firms, nor that the mere filing of a complaint by an attorney with the Commission against a judge necessarily requires recusal by the judge in any case where that attorney appears. See Ops. Adv. Comm. Jud. Ethics 88-54, Vol. II. See also the Annual Report of the New York State Commission on Judicial Conduct (1989) at p.43, where the Commission notes that, “From time to time ... the Commission will receive a complaint which was apparently filed for the purpose of intimidating the judge, or as an excuse to request the judge’s disqualification, in connection with a pending case.” In this Opinion, the Committee addresses a situation where, in a small county, attorneys’ complaints resulted in a full Commission hearing followed by a public censure of the judge. The Committee addresses no other factual situation.

         The Committee recognizes that the practical resolution of this issue may involve serious administrative problems that perhaps can be met only by administrative transfer of judges from one court or county to another.