March 11, 2021
Digest: (1) Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve. (2) The judge may communicate privately with the reported attorney to advise them that a disciplinary complaint has been filed.
Rules: Judiciary Law §§ 9; 90(10); 212(2)(l); 22 NYCRR 100.2; 100.2(A); 101.1; Opinions 18-29; 08-183/08-20/09-112.
The inquiring judge reported an attorney to the grievance committee and is therefore disqualified in matters where the attorney appears (see e.g. Opinion 18-29). The reported attorney has publicly demanded an explanation for the judge’s recusal, pursuant to Section 9 of the Judiciary Law. The inquiring judge asks if it is ethically permissible to: (1) publicly disclose that they filed a disciplinary complaint against this attorney and/or (2) privately disclose the reason to the reported attorney.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must “respect and comply with the law” (id.).
1. May a judge publicly disclose their reason for recusal, when that reason is that the judge reported an attorney to the grievance committee?
We previously advised that a judge who reports an attorney to the grievance committee must not disclose the reason for recusal unless the attorney waives confidentiality or the matter results in public discipline (see e.g. Opinions 18-29; 08-183/08-20/09-112). However, Judiciary Law § 9, effective December 23, 2020, provides:
Any judge who recuses himself or herself from sitting in or taking part in the decision of an action, claim, matter, motion or proceeding shall provide the reason for such recusal in writing or on the record; provided, however, that no judge shall be required to provide a reason for such recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.
Notably, this law does not, on its face, appear to provide an exception based on possible embarrassment or opprobrium to an attorney who is not related to the judge. Given that a judge is disqualified not only while the grievance committee is investigating and prosecuting the matter, but also for two years after its disposition (e.g. Opinion 18-29), it is possible to imagine a policy argument that the public could have an interest in knowing why a judge will not hear matters involving a particular attorney for an extended period.
Yet there are other countervailing policy considerations, involving the attorney’s interest in confidentiality while a complaint is pending or after it is resolved in the attorney’s favor, as enshrined in Judiciary Law § 90(10):
Any statute or rule to the contrary notwithstanding, all papers, records and documents upon the application or examination of any person for admission as an attorney and counsellor at law and upon any complaint, inquiry, investigation or proceeding relating to the conduct or discipline of an attorney or attorneys, shall be sealed and be deemed private and confidential. However, upon good cause being shown, the justices of the appellate division having jurisdiction are empowered, in their discretion, by written order, to permit to be divulged all or any part of such papers, records and documents. In the discretion of the presiding or acting presiding justice of said appellate division, such order may be made either without notice to the persons or attorneys to be affected thereby or upon such notice to them as he may direct. In furtherance of the purpose of this subdivision, said justices are also empowered, in their discretion, from time to time to make such rules as they may deem necessary. Without regard to the foregoing, in the event that charges are sustained by the justices of the appellate division having jurisdiction in any complaint, investigation or proceeding relating to the conduct or discipline of any attorney, the records and documents in relation thereto shall be deemed public records.
Resolution of the dissonance between these two sections of the Judiciary Law is a legal question we must decline to answer (see 22 NYCRR 101.1; Judiciary Law § 212[l]). Thus, whether a judge who has reported an attorney to the grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, likewise presents a primarily legal question we cannot resolve.
2. May a judge privately disclose their reason for recusal to the reported attorney?
We believe a judge who is disqualified in matters involving a particular attorney because they reported the attorney to the grievance committee may privately advise that attorney that the judge made a complaint to the grievance committee, without providing the substance of the complaint.