March 9, 2006
Digest: A judge who recused himself/herself from a case should not, at the request of an attorney on the case, prepare and submit an affidavit as to his/her prior rulings to the judge who is now presiding.
Rules: 22 NYCRR 100.2; 100.2(C); 100.3(B)(6)(C); Opinions 01-25 (Vol. XIX); 98-118 (Vol. XVIII); 95-135 (Vol. XIII); 88-155 (Vol. III).
A judge who initially presided and made several rulings in a case later exercised recusal. The attorney for one of the parties has now asked the disqualified judge to submit a sworn affidavit as to his former rulings. The inquiring judge asks whether it is ethically permissible to provide such an affidavit.
Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities. 22 NYCRR 100.2. In particular, a judge is prohibited from testifying “voluntarily as a character witness.” 22 NYCRR 100.2(C). This Committee has concluded, however, that a judge may (1) “provide an affidavit and testify as a fact witness regarding an accident that the judge witnessed” [Opinion 98-118 (Vol. XVIII)]; (2) testify as a character witness in response to a subpoena, by letter or affidavit, in a domestic relations matter to be heard in an out-of-state court [Opinion 95-135 (Vol. XIII)]; (3) agree to be interviewed by counsel for a party prior to appearing as a witness before a disciplinary committee hearing panel [Opinion 88-155 (Vol. III)] and, (4) be interviewed by the attorneys for a plaintiff in a pending lawsuit as to matters observed by the judge in his or her court and on the practices and procedures of the court [Opinion 01-25 (Vol. XIX)].
In the present inquiry, the judge is neither testifying to facts or observations, nor in response to a subpoena. Rather, the request concerns the inquiring judge’s prior rulings in the case and comes from an attorney for one of the parties. The prior rulings in the case are easily ascertained by the judge who is now presiding in the case, either from the case file or any available transcript, and the attorney is free to make such a request of the presiding judge. Further, the presiding judge may consult with the recused judge simply to have him/her describe such rulings, should he/she find it necessary. See, 22 NYCRR 100.3(B)(6)(C). In the Committee’s view, it would therefore be improper for the inquiring judge to comply with the attorney’s request.