September 4, 2014
Digest: A judge whose formal complaint against another judge resulted in public discipline more than two years ago may preside over matters in which the disciplined judge appears as an attorney, provided he/she can be fair and impartial.
Rules: 22 NYCRR 100.2; 100.3(E)(1); Joint Opinion 08-183/ 08-202/09-112.
The inquiring judge states that he/she previously reported another judge to the Commission on Judicial Conduct; and, as a result, the other judge was publicly disciplined over two years ago. The disciplined judge is now practicing law full-time, and represents clients before the inquiring judge. The inquiring judge asks if he/she may preside over the former judge’s cases.1
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
Applying these principles, the Committee has advised that, after a judge files a complaint against an attorney, the judge must disqualify him/herself in all matters in which the attorney appears while the complaint is pending and for a period of two years after the complaint is resolved (see Joint Opinion 08-183/08-202/ 09-112). The Committee believes the same period of mandatory disqualification should apply when the subject of the judge’s complaint is, or was, another judge.
Here, however, because more than two years have passed since the Commission on Judicial Conduct resolved the disciplinary complaint, disqualification is no longer mandatory. Therefore, the inquiring judge may preside in matters in which the disciplined judge appears as an attorney, provided he/she can be fair and impartial.
1 The Committee understands that there are multiple judges in the inquiring judge’s court, and that, upon the attorney’s request, the inquiring judge disqualified him/herself from one of the attorney’s cases assigned to him/her.