January 29, 2015
Digest: A supervising judge, who handles a trial assignment part and is disqualified from presiding in cases where certain attorneys appear, must disqualify him/herself from assigning those cases if the judge must exercise his/her discretion in making the assignment.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(C)(1); 100.3(E)(1); Opinions 14-57; 12-25; 09-06; 08-132; 08-71.
A supervising judge, who handles the trial assignment part for his/her court, states that he/she is disqualified from presiding in cases in which certain attorneys appear. The judge asks whether he/she may nonetheless exercise his/her supervisory authority and assign such cases (i.e., cases in which the judge could not preside) to other judges.
The judge has further explained that the attorneys at issue typically appear under two circumstances. First, and most commonly, they appear for superior court information conferences. The inquiring judge notes that only one other judge handles such conferences. Consequently, the court clerk's office has continued the procedure suggested by a former supervising judge. That is, when the supervising judge is disqualified from an attorney’s case, the court clerk automatically assigns the case to the other judge. Second, the attorneys at issue occasionally appear for trials, and there are multiple other judges available for such trials.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). A judge also must diligently discharge his/her administrative responsibilities without bias or prejudice (see 22 NYCRR 100.3[C]).
The Committee has advised that, where a judge is disqualified from presiding over matters involving a particular attorney, the disqualification includes all matters in which the attorney appears, “even if the judge deems these appearances to be ‘routine’ or ministerial in nature” (Opinion 08-71), such as “routine calendar appearances, arraignments or omnibus motions”; (Opinion 12-25 [judge who is disqualified from presiding over matters where a particular attorney appears may not “so-order” stipulations entered into by that attorney]).
Following these principles, the Committee concludes that if a supervising judge is required to exercise any discretion in assigning or re-assigning a case, the judge should disqualify him/herself from doing so in any case over which he/she could not personally preside. A different analysis, however, applies where the supervising judge has no discretion in assigning the case. That is, where there is only one judge to whom a case can be assigned, there can be no appearance of impropriety when the supervising judge assigns the case to that judge.
In the present inquiry, it appears the inquiring supervising judge has no discretion with respect to the assignment of judges to hear superior court information conferences when the inquiring judge has a conflict, as there are only two judges in the court (the inquiring judge and one other) who hear such matters. Moreover, the court clerk has standing instructions to assign cases initially to the other judge, whenever the inquiring judge has a conflict (cf. Opinions 14-57 [a village justice who is also a lawyer may ask the village court clerk to assign his/her cases to the non-lawyer acting village justice at the outset]; 09-06 [a part-time lawyer-judge may ask that a case be assigned to a judge before whom the part-time lawyer-judge may appear, if the request is made before the matter has been assigned to any judge]; 08-132 [a full-time city court judge may direct a city court clerk to assign, at the outset, all cases in which a party is represented by a lawyer-judge to a full-time judge in the court and, thereafter, ensure that the part-time judge appearing on the case never appears before any of the part-time city court judges]). The Committee sees no appearance of impropriety in this procedure.
However, as for trial assignments, it appears the inquiring supervising judge has discretion because there are multiple judges available in the court to preside in such matters. Thus, the Committee believes the supervising judge should disqualify him/herself from assigning cases for trial, where he/she would be disqualified from personally presiding in the case. This way, the judge will avoid any appearance of impropriety. The Committee suggests that the judge consult with his/her administrative judge about how best to handle assignment of these cases going forward.