Opinion 08-28

March 13, 2008

Note: This Opinion has been overruled or modified. Please refer to Joint Opinion 08-183/08-202/09-112 before relying on this Opinion.


Digest:         A judge, who files a complaint with a disciplinary committee about an attorney who regularly appears in the judge’s court as a conflict defender, must disqualify him/herself when the attorney appears before the judge while the complaint is pending. Such disqualification is subject to remittal, but if the attorney does not consent to the judge’s continued participation in a case, the judge must exercise recusal.


Rules:          22 NYCRR 100.2(A); 100.3(E); 100.3(F); Opinions 07-181; 06-150; 06-100.


         A Judge filed a complaint with a disciplinary committee about an attorney who regularly appears in the judge’s court as a conflict defender. The disciplinary committee subsequently notified the judge that it is investigating the complaint.

         The judge is familiar with the Committee’s Opinion 06-100, in which the Committee advised that a judge who files a complaint about an attorney with a disciplinary committee is disqualified from presiding in matters involving that attorney while the complaint is pending.

         The judge indicates that he/she can be fair and impartial in matters involving the attorney and asks if his/her disqualification is subject to remittal. If remittal is available, the judge asks whether he/she can terminate the attorney’s assignments and re-assign the attorney’s cases to the other conflict defender if the attorney does not consent to remit the judge’s disqualification.

         A judge must at all times act in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]), and must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). Except in four instances - all inapplicable in the present inquiry - a judge’s disqualification is subject to remittal (see 100.3[F]). A judge, therefore, who is disqualified may disclose on the record the basis of his/her disqualification (see id.). If following such disclosure, the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree that the judge should not be disqualified, and the judge believes that he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see id.). The agreement must be incorporated in the record of the proceeding (see id.). However, when a judge is disqualified because he/she has filed a disciplinary complaint against an attorney, the judge should seriously consider making the disclosure with appropriate sensitivity, in light of the confidential nature of the investigation into the attorney’s conduct, before disclosing the reason for recusal (see Opinion 07-181).

         Therefore, while the judge in the present inquiry is disqualified from presiding when the attorney the judge reported to the disciplinary committee appears in the judge’s court, such disqualification is subject to remittal (see 22 NYCRR 100.3[E],[F]; Opinion 06-150). The judge may not, however, re-assign the attorney’s cases if the attorney does not remit the judge’s disqualification, as to do so might have a coercive effect on the attorney’s decision about remittal. Rather, in the absence of remittal, the inquiring judge must exercise recusal from the case.