Opinion 23-48
May 4, 2023
Digest: (1) A judge who formerly served as the town attorney is not disqualified from presiding in matters handled by a lawyer who previously served on the town board during the judge’s tenure as town attorney, even if the lawyer plans to, or does, call the judge as a witness and/or seek the judge’s emails and records concerning events that took place during that period. Rather, the judge may preside as long as the judge concludes they can be fair and impartial.
(2) Where the lawyer also claims the existence of “extreme animosity” between them and the judge, recusal is not warranted where the judge has conducted the relevant interpersonal analysis and has determined that the judge can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); Opinions 22-125; 21-174; 19-39; 15-45; 14-51; 11-125; 10-190; 90-18; People v. Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge previously served as town attorney for nearly a decade. A lawyer who served on the town board more than five years ago, but during the judge’s tenure, is currently appearing before the judge on an unrelated matter and has asked the judge to recuse.[1] First, the lawyer asserts that “extreme animosity and harsh feelings” arose between them during a three-year period when their terms as town board member and town attorney overlapped. Second, the lawyer has allegedly been retained by the town to perform an “ethical investigation” into certain unspecified “events that took place” during the judge’s tenure as town attorney. The lawyer believes the judge “at an absolute minimum” was a witness to those events and intends to seek all of the judge’s relevant emails and records from that period. The judge was surprised to hear of the lawyer’s animosity, as the judge does not share those feelings. Moreover, the judge is confident they can be fair and impartial in the lawyer’s cases. The judge nonetheless asks if disqualification is ethically required.
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 also must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Therefore, a judge must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specific circumstances required by rule or law (see Judiciary Law § 14). When a judge’s disqualification is not mandated under objective criteria, however, the judge is the sole arbiter of disqualification (cf. People v Moreno, 70 NY2d 403 [1987]).
Former service as town attorney
We previously considered the inverse situation, where a town justice-elect who was serving on the town board asked if it would be permissible to preside in matters involving the town attorney on assuming judicial office (see Opinion 10-190). We concluded it was permissible, even though the inquirer had “voted to appoint the town attorney” both “on the initial appointment and subsequent annual reappointments,” unless the judge cannot be impartial (id.).
We conclude this judge’s prior service as the town attorney likewise does not raise reasonable questions about the judge’s impartiality in matters where a former member of the town board is appearing, particularly when their overlap in service ended approximately five years ago. Accordingly, the judge is not disqualified on this basis, provided the judge concludes they can be fair and impartial.
Judge as potential or actual fact witness
Significantly, the lawyer here is not proposing to sue the judge or undertake legal representation of the judge, but only to call the judge as a witness. A judge is not necessarily disqualified in one proceeding merely because they have been called as a witness in another proceeding, even if their testimony relates to matters they observed on the bench (see Opinions 22-125; 21-174; 19-39). Nor is a judge necessarily disqualified from presiding in a matter merely because one of the attorneys before them cross-examined the judge as a witness in a prior civil or criminal proceeding (see Opinions 14-51; 90-18).
Here, the lawyer asserts they may have to interview the judge as a witness and/or seek the judge’s emails and records concerning events that took place during the judge’s tenure as town attorney. This is not a circumstance that necessitates recusal. Indeed, even if the lawyer eventually does call the judge as a witness and seek the judge’s records in a formal proceeding, the judge may still preside in matters where the lawyer appears, provided the judge concludes the judge can be fair and impartial.
Allegedly acrimonious relationship
Because human relationships are “so varied, fact-dependent, and unique to the individuals involved” (Opinion 11-125), we have said each judge must conduct their own fact-specific determination as to whether a particular relationship/association between an attorney and the judge may reasonably cause a judge’s impartiality to be questioned (see id.).
To this end, we have established three broad categories of interpersonal relationships between judges and lawyers who appear before them: (1) Acquaintance; (2) Close Social Relationship and (3) Close Personal Relationship and have identified various factors a judge should consider in making a fact-specific determination (see id.).
Although the lawyer claims there is “extreme animosity and harsh feelings” between them, the lawyer is not in a position to speak for the judge on this issue. The judge disagrees, and it is for the judge to assess their overall relationship and search the judge’s own personal conscience as to whether the judge can be fair and impartial (see e.g. Opinion 15-45; cf. People v Moreno, 70 NY2d 403 [1987]). Having conducted the relevant interpersonal analysis, the judge has determined that the judge can be fair and impartial and that recusal in the lawyer’s cases is not warranted. We find no basis to reach a different conclusion here.
[1] As the inquirer is a state-paid judge, we need not consider whether the lawyer is or is not currently a town board member.