June 7, 1990
Digest: A judge, under certain circumstances, should disqualify himself in all matters handled by attorneys and their associates, who previously had testified at a hearing involving the judge before the Commission on Judicial Conduct, where the hearing resulted in a public censure of the judge, even if the attorneys consent to the judge's presiding.
Rules: 22 NYCRR 100.2, 100.3(d) ; Canons 3(C)(1), 3D, Code of Judicial Conduct; N.Y. State Bar Association, Committee on Professional Ethics, Opinion 602; Op. 89-154, Adv. Com. Jud. Ethics.
An administrative judge requests reconsideration of Opinion 89-154 of this Committee, which held that a trial judge should disqualify himself in all matters handled by attorneys and their associates, who previously had testified at a hearing involving the judge before the Commission on Judicial Conduct, where the hearing resulted in the public censure of the judge. The administrative judge, on the basis of a resolution adopted by the local bar association, inquires whether the censured judge may preside over a case if both parties, after the judge has made full disclosure of the facts, have consented, in writing, to the judge's presiding.
The Advisory Committee, in issuing Opinion 89-154, has pointed out, in effect, that Opinion 89-154 relates to a factual situation that is almost sui generis, as explained in that Opinion.
After full consideration, the Committee adheres to its original determination, because of the possible appearance of mutual hostility and the need to assure the public that proceedings in the court will not be affected by rancor or favor. Accordingly, the judge should not preside in such instances, even where both parties consent to the judge's continued participation in the case.