June 11, 2015
Digest: Provided the judge can be fair and impartial, neither disclosure nor disqualification is required merely because a judge responded to a confidential request from a judicial appointments committee for comments on the character, ability, integrity, and temperament of an attorney who regularly appears before the judge.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 14-30; 12-84/12-95(B)-(G); 11-64; 08-160; 08-138; 07-130; People v Moreno, 70 NY2d 403 (1987).
The inquiring judge recently responded in writing to a request from an advisory committee on judicial appointments for “any comments you would care to make” about an attorney applicant’s “character, ability, integrity and temperament.” The committee assured the judge that his/her comments would “be kept in confidence.” The judge’s comments reflected the judge’s personal knowledge and observations of the attorney’s professional performance over the years; they have no social relationship. The judge believes he/she can be fair and impartial in matters where the attorney appears, but asks whether disclosure or disqualification is nonetheless required.
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 a case where his/her impartiality might reasonably be questioned (see generally 22 NYCRR 100.3[E]).1
The Committee has previously advised that “the public can only benefit when individuals seeking appointment or re-appointment to judicial office are able to provide the appointing authority or its designee with the names of individuals ‘who can meaningfully assess [their] qualifications, character and temperament’ and are also ‘familiar with the legal system’” (Opinion 14-30, quoting Opinion 11-64). In Opinion 14-30, the Committee recognized that “[w]hen the individual seeking appointment or re-appointment is a sitting judge, it is very likely that some of the individuals who can most meaningfully assess the judge’s qualifications will be attorneys who have frequently appeared before the judge” (id.). Nonetheless, “because individuals seeking appointment or re-appointment to judicial office must provide such references, ... a judge’s impartiality cannot reasonably be questioned simply for participating in this routine process.”
Nor would it otherwise benefit the public to mandate disclosure, because such a requirement could discourage sitting judges from listing attorneys who frequently appear before them as references and could similarly discourage attorneys from agreeing to serve as references in the appointment process” (id. [citations omitted]). For all those reasons, the Committee concluded that neither disclosure nor disqualification is required when an attorney who is listed as a reference in the judge’s application for appointment appears before the judge, provided the judge can be fair and impartial (id.).
Although this inquiry presents the inverse circumstance (i.e., a judge responding to a screening panel’s confidential request for information concerning an attorney applicant for judicial office), essentially the same considerations apply. The Committee has consistently advised that a sitting judge may respond to a direct request from a judicial screening panel about qualifications of candidates for elective judicial office because “sitting judges are not only familiar with the legal system but are likely well-situated to observe conduct that is relevant to a potential judicial candidate’s qualifications, competence, character” (Opinion 12-84/12-95[B]-[G]; see also Opinions 08-160; 07-130). A judge’s impartiality cannot reasonably be questioned simply for participating in this “routine process” (Opinion 14-30) from the other side, that is, by responding to a judicial screening panel’s confidential request for information about an attorney.2 Nor would it otherwise benefit the public to mandate disclosure, because such a requirement could discourage attorneys from listing the judges they appear before as references and could similarly discourage such judges from agreeing to serve as references in the appointment process (cf. Opinion 14-30).
Accordingly, provided the inquiring judge can be fair and impartial, neither disclosure nor disqualification is required merely because the judge responded to a confidential request from a judicial appointments committee concerning the character, ability, integrity, and temperament of an attorney who regularly appears before the judge.
1 Where, as here, the specific statutory disqualifying circumstances do not apply (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14), the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E]). If disqualification is not mandated under this objective standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
2 Indeed, even where a judge has been subpoenaed to testify before an attorney grievance committee, the judge need not thereafter disqualify him/herself or disclose that he/she testified when the attorney appears before him/her (see Opinion 08-138).