January 25, 2001
Please Note: This opinion was expressly modified by Opinion 13-132 to reflect that a judge is disqualified, subject to remittal, during the attorney's representation of the judge's child.
Digest: Where disqualification is not mandatory, a decision whether to recuse is within the personal conscience of the judge and rests upon the exercise of discretion. But the judge should give due consideration to the public perception of partiality where one of the attorneys in the custody proceeding before the judge also represents members of the judge's family in a pending litigation, even if it is that attorney who seeks the judge's recusal and not the attorneys for the other parties.
Rule: 22 NYCRR 100.2(A); 100.3(E); 100.3(E)(1); 100.3 (E)(1)(a) - (e); Opinions 99-81; 99-47 (Vol. XVII); 92-60 (Vol. IX).
A judge, sitting in Family Court has been assigned a paternity-custody proceeding which also involves an application for intervention in the custody proceeding by a couple who have been caring for the infant. Representing the caretakers of the infant is an attorney who is also the attorney for the judge's stepson and wife in a pending litigation with their homeowner's insurance company.
The judge has disclosed the family members' attorney-client relationship. The attorney for the mother and the attorney for the putative father do not object to the judge's continuing to preside. However, the attorney for the caretakers does object and has requested the judge's recusal, on the ground that because of the present representation of the judge's stepson and wife in another matter, the judge may "over compensate" in attempting to be fair, and this could be to his clients' detriment. The judge seeks the Committee's guidance with regard to how the matter should be handled.
It appears that the circumstances set forth do not present grounds for mandatory disqualification under Judiciary Law §14. Nor are the specific grounds for disqualification delineated in subparagraphs (a) through (e) of section 100.3(E)(1) of the Rules Governing Judicial Conduct present. 22 NYCRR 100.3(E)(1)(a)-(e). The approach of the Committee, under such circumstances, was explained in Opinion 99-81, where the inquiring judge likewise sought guidance with respect to an application for recusal, where neither Judiciary Law §14 nor section 100.3(E)(1)(a) - (e) of the Rules was directly implicated. As stated by the Committee:
In seeking to advise the judge, the Committee must emphasize that it is not an adjudicatory body. While it has before it the judge's recitation of what the motions for recusal entail, it does not have the motion papers submitted for or in opposition to the motion. Nor does it seek such materials, since, as explained below, the decision whether to recuse in this instance rests with the judge and cannot be decided for the judge by an advisory body. But, we do take this opportunity to point out what are some of the fundamental considerations that should guide the judge in arriving at a decision.
As presented by the judge, there has been no showing of grounds for mandatory disqualification under section 14 of the Judiciary Law; nor on the face of the judge's letter does there appear to be a showing of circumstances covered under section 100.3(E) of the Rules Governing Judicial Conduct. 22 NYCRR 100.3(E). As a result, as stated by the Court of Appeals in People v. Moreno, 70 N.Y.2d 402 (1987), the trial judge "is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court when the alleged appearance of impropriety arises from inappropriate awareness of 'non-juridical data.'" 70 N.Y.2d at 405. But this does not mean that the exercise of discretion may not be subject to review and guidance. Thus, in Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979), a case where the attorney for the petitioner was associated with the same law firm as was the trial judge prior to her designation to the bench, the Court of Appeals noted that "Though there is no canon of judicial ethics which specifically requires disqualification under these circumstances, we believe it the better practice for the court to have disqualified itself and thus to maintain the appearance of impartiality." 48 N.Y.2d at 895.
Maintaining public confidence in the impartiality of the judiciary is, of course, a judicial imperative. 22 NYCRR 100.2(A). In assessing the possible impact on the public's confidence, it is important to recognize that the exercise of recusal is not limited to the specific instances stated in section 100.3(E)(1)(a)-(e), but should obtain in any "proceeding in which the judge's impartiality might reasonably be questioned . . . ." 22 NYCRR 100.3(E)(1). Here, the judge should give due weight not only to the fact of the family representation but also to the fact that the name of the attorney was initially supplied by the judge to his/her family members and that the judge has been periodically informed of the progress of the case.
Moreover, the fact that it is that attorney and not his adversaries in the custody proceeding who seek recusal does not, in our view, alter the considerations that should prevail. For although the judge is satisfied as to his/her capacity not to engage in "preferential treatment" of any attorney, the issue of public perception is of prime significance, especially since the judge states there has developed a substantial public interest in the case. In similar situations involving current representation of family members, the Committee has advised recusal, and the question for the judge is whether in the exercise of conscience, and after due deliberation, the present situation warrants a different conclusion. In our opinion, nothing set forth in the submission demands a different result. See Opinions 99-47 (Vol. XVII), 92-60 (Vol. IX).