Opinion 90-74

June 7, 1990

NOTE: Please refer to Opinion 10-85 for updated guidance on a judge's disciplinary responsibilities under Section 100.3(D)(2), including the comment that “the Committee has come to believe that its prior use of the phrase ‘substantial violation’ as a defined term or term of art may be confusing.”

Digest:         (1) A judge is not required to recuse himself or herself when a substitution of defense counsel in a quasi-criminal proceeding occurs prior to sentencing, where the new firm's predecessor once represented the judge, and where it appears to the judge that the substitution was made to secure the judge's recusal, provided the judge believes he or she can be impartial; (2) a judge is required to report an attorney's conduct to disciplinary authorities where the judge believes it constitutes a substantial violation of professional ethics, but not   otherwise.

Rules:          22 NYCRR 100.3(c); 100.3(b)(3)

Opinion:

         A local judge presiding in a quasi-criminal proceeding involving alleged violations of local ordinances asks whether (1) the judge should recuse himself or herself, and (2) the judge should report attorneys to disciplinary authorities, under the following circumstances. After conviction of the defendants, but before imposition of sentence, a new defense firm was retained by a defendant, which requested the judge's recusal because its predecessor firm, some two years previously, had represented the judge in personal litigation. A new prosecutor also was named at this stage by the locality. In view of all the circumstances surrounding the substitution, and the events leading thereto, the judge concludes that the substitution of new defense counsel was made primarily for the purpose of securing the judge's recusal, if the judge would not set aside the verdict, with defense counsel acting in concert with the new prosecutor. These matters also are the subject of legal motions and proceedings.

         In addition, the judge believes that some of the affidavits submitted to the court by some of the attorneys are misleading.

         The sole jurisdiction of this Committee is to construe the Code and Rules of Judicial Ethics and to apply their provisions to actual fact situations submitted by a judge. Therefore, the Committee can neither resolve nor comment upon the purely legal or factual issues pending before the courts. These are solely for the courts to determine.

         It is the Committee's opinion, however, solely from the point of view of judicial ethics, that, ethically, a judge need not disqualify himself or herself under the

circumstances stated, where the judge concludes that the substitution of attorneys at the last stage of the case was made for the purpose of securing the judge's recusal, unless the judge personally believes that he or she can no longer remain impartial.

         This Committee is not authorized to construe the Code of Professional Responsibility that binds attorneys, nor to determine whether an attorney's specific conduct does or does not breach that Code. The Committee can only reiterate the general principle it has stated previously, that a judge who becomes aware of troublesome conduct by an attorney, must determine whether, in the judge's opinion, such conduct violates professional ethics, and if so, whether the violation is substantial, in which case the judge should report the violation. However, the judge must personally determine whether the attorney's conduct probably constitutes a substantial violation.