January 2, 2008
Note: This Opinion has been overruled or modified. Please refer to Joint Opinion 08-183/08-202/02-112 before relying on this Opinion.
This responds to your inquiry (07-200) about a District Attorney’s intention to continue assigning an assistant district attorney to prosecute cases in your court even though you have filed a complaint against that assistant district attorney with the Attorney Grievance Committee.
Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). This Committee previously has advised that a judge who files a disciplinary complaint against an attorney must, while the complaint is pending, exercise recusal whenever the attorney appears before the judge. Opinions 06-107; 05-37. This is true even under the circumstances you describe in your inquiry. That recusal, however, is subject to remittal.
The Rules Governing Judicial Conduct also require a judge who receives information indicating a substantial likelihood that a lawyer has committed a substantial violation of the Code of Professional Responsibility to take appropriate action. 22 NYCRR 100.3(D)(2). This Committee has consistently advised that only the judge who is aware of all the facts concerning an attorney’s alleged misconduct can determine if such misconduct constitutes a substantial violation of the Code of Professional Responsibility and, if so, the appropriate action to take under the circumstances. Opinion 04-74. Therefore, if you conclude that the District Attorney’s actions in continuing to assign an assistant district attorney to prosecute cases in your courtroom while knowing that you cannot preside in those cases constitutes a substantial violation of the Code of Professional Responsibility, you must take appropriate action.
In addition, you may wish to consult your Administrative Judge to deal with the practical difficulties caused by the District Attorney’s actions.
I have enclosed copies of Opinions 06-107, 05-37, and 04-74 for your information and convenience.