Opinion 01-120

December 13, 2001

Note: This Opinion has been overruled or modified. Please refer to Joint Opinion 08-183/08-202/02-112 before relying on this Opinion.


Digest:         Recusal by a judge who has filed a disciplinary complaint against an attorney who will represent a criminal defendant during a trial at which the judge will preside is subject to remittal.


Rules:          22 NYCRR 100.3(E)(1); 100.3(F).


         A judge asks whether recusal is required in a criminal case where the judge has filed a disciplinary complaint against the defendant's attorney. A trial is scheduled and the disciplinary complaint is still pending. The judge has disclosed these facts to the defendant and despite the judge's suggestion that trial before a different judge might be advisable under the circumstances, the defendant and both attorneys want the judge to preside during the trial. The judge indicates that he/she can be fair and impartial in the case.

         A judge must exercise recusal in a case where the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). If, however, the judge discloses to the parties the reason for recusal and the parties, without the judge's participation, all agree that the judge should not be disqualified, the judge may preside in the case so long as the judge is willing to do so and believes that he/she can be impartial, provided, of course, that the grounds for recusal are not mandatory. Here, the disqualification is subject to remittal under section 100.3(F) of the Rules Governing Judicial Conduct. 22 NYCRR 100.3(F).


         Thus, it is the Committee's opinion that ethically, the inquiring judge may preside over the criminal trial so long as the judge is willing to do so. The parties are aware of the facts that may give rise to an appearance of partiality, but nevertheless want the judge to preside, and the judge indicates an ability to remain fair and impartial. Under the circumstances, the judge may preside, provided that there is adherence to the procedures for remittal. 22 NYCRR 100.3(F).