September 10, 2020
Digest: (1) A judge who files a disciplinary complaint against the District Attorney based on a prosecutorial policy that affects all local courts in the county is disqualified while the disciplinary proceeding is pending, and for two years after it is resolved, in any case where the District Attorney personally appears. Remittal is not available during this period unless the grievance committee imposes public discipline, or the District Attorney waives confidentiality. (2) The judge may nonetheless preside in cases where assistant district attorneys of the same office appear, even though the District Attorney is counsel of record, provided the judge is satisfied they did not set the policy and assuming he/she can be fair and impartial.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 20-67; 18-176/18-176(A)/18-177; 18-171; 16-146; 91-130; 90-74.
Several local court judges in the same county ask us to reconsider our rule that a judge who reports the District Attorney to an attorney grievance committee must thereafter disqualify him/herself from matters in which the DA personally appears. The inquiring judges would like to report the DA for a systemic, countywide policy they consider highly improper, unprofessional, and a threat to the judicial independence of local courts. They believe the DA might retaliate against any judge who files a disciplinary complaint by personally appearing in the vast majority of cases in that judge’s court.
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]).
As summarized in Opinion 20-67:
After a judge has filed a disciplinary complaint against an attorney, the judge must disqualify him/herself from matters involving that attorney during the pendency of the complaint and for two years after its resolution. However, the Committee has advised that a judge is not necessarily disqualified from presiding over other attorneys in the same public or private law office as the reported attorney, provided the judge is satisfied that they were not involved in the purported misconduct and the judge believes he/she can be fair and impartial.
We have followed this approach even when the subject of the judge’s complaint is the local District Attorney (see Opinions 18-176/18-176(A)/18-177; 16-146). Indeed, we said the reporting judge may continue to preside in matters involving assistant district attorneys, even though the DA’s allegedly unethical policy “is necessarily executed by the assistant district attorneys who actually appear in the judge’s court” (Opinion 16-146). As we explained in Opinion 16-146 (citations omitted), this approach already reflects an exception to the usual rule:
When a judge is disqualified from matters involving a District Attorney, the disqualification generally applies to all matters involving the office because the District Attorney is the attorney of record for all cases filed by his/her office. However, the Committee has specifically rejected that principle where a judge has reported the Public Defender to a grievance committee. The Committee believes the same exception applies when a judge reports the District Attorney. Indeed, a contrary rule could unduly interfere with a judge’s discharge of disciplinary responsibilities under Section 100.3(D)(2). That is, a judge with a large criminal caseload might be reluctant to report the District Attorney or the Public Defender - even for extremely serious misconduct that calls into question his/her fitness as an attorney - if it meant the judge could no longer preside in any matters whatsoever involving those offices. Given that “[a]cts of a judge in the discharge of disciplinary responsibilities are part of a judge’s judicial duties” under the Rules, the Committee wishes to limit the administrative difficulties that result from proper discharge of those duties.
We have considered the theories and authorities suggested by the inquiring judges, and believe they are inapplicable on the facts presented. We note, for example, that the so-called “canon of necessity” could not logically come into play on these facts unless or until all, or virtually all, of the local judges in the county actually file complaints against the DA (cf. Opinion 91-130). We thus decline to adopt a further exception to the exception here, particularly as Opinion 16-146 similarly involved a prosecutorial policy that, the inquiring judge believed, “significantly hinders the administration of justice and was adopted for improper and unprofessional reasons.”
We further note that, where, as here, the inquiring judges believe the DA’s policy undermines the administration of justice in the entire county, the Rules Governing Judicial Conduct do not prohibit them from involving high-level court administrators who might be in a position to take additional steps that could be difficult or impracticable for a local judge.
1 We decline to assume the DA is so unprofessional as to attempt to retaliate against any and all local judges who choose to report him/her, whether by personally appearing in cases that do not warrant his/her involvement in order to “force” the judges’ disqualification or otherwise. Surely both geographical and time constraints would preclude the DA from literal personal involvement in every criminal case. Should this DA nonetheless do so, however, the judges may take additional steps. Any bad-faith retaliatory conduct may likewise be reported to the attorney grievance committee and/or court administrators at any level of the Unified Court System for further action. Moreover, the judges also may seek further guidance on whether disqualification remains mandatory on the specific circumstances presented, particularly if they conclude the DA is attempting to engage in forum shopping by gratuitously personally appearing on matters that would ordinarily be handled by assistant district attorneys (cf. Opinions 18-171; 90-74).