Opinion 17-14

January 26, 2017

Please Note: Point #2 has been modified, in part, by Opinion 17-49. 

Digest:         (1) A multi-bench judge who has reported an attorney is disqualified from all matters in which the reported attorney appears, regardless of court or county, and regardless of whether the reported attorney is appearing as a public defender or a private attorney. The disqualification lasts while the disciplinary proceeding is pending and for two years after it is resolved. Remittal is not available during this period unless the grievance committee imposes public discipline or the reported attorney waives confidentiality. (2) Where the reported attorney is a part-time judge, the disqualification extends to cases in which the reported attorney has acted as a judge. (3) Where the reported attorney represents a defendant/participant in Treatment Court, the judge may not preside in the defendant/participant’s case, even if the reported attorney files a waiver of appearance.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(E)(1); Opinion 16-146.

Opinion:

         A county court judge, cross-assigned to courts in more than one county, asks about the extent of his/her disqualification obligations based on complaint(s) he/she made to an attorney disciplinary committee.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) 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” (22 NYCRR 100.3[E][1]).

1. Duration and Possible Geographical Limitations

         The judge states he/she reported an attorney who regularly appears in courts where the judge presides, including as a public defender in some courts. Accordingly, the judge asks if he/she is disqualified from all matters in which this attorney appears, regardless of county. If so, the judge asks how long the disqualification lasts.

         The judge is disqualified from all matters in which the reported attorney appears, regardless of court or county, and regardless of whether he/she is appearing as a public defender or a private attorney (see Opinion 16-146). The disqualification lasts “while the disciplinary proceeding is pending, and for two years after it is resolved” (id.). Remittal is not available during this period unless the grievance committee imposes public discipline or the reported attorney waives confidentiality (id.).

2. Special Circumstances: Reported Attorney is Also a Part-Time Judge

         The judge states he/she reported an attorney who is also a part-time judge in the same county. The judge asks if he/she may preside in (a) appeals of the reported attorney’s judicial decisions and/or (b) cases that are transferred to his/her court after the reported attorney exercises preliminary jurisdiction as a judge.

         In the Committee’s view, a judge may not preside in any matter involving the reported attorney, including matters in which the reported attorney has acted in his/her judicial capacity, “while the disciplinary proceeding is pending, and for two years after it is resolved” (Opinion 16-146). Again, remittal is not available during this period unless the grievance committee imposes public discipline or the reported attorney waives confidentiality (id.).

3. Special Circumstances: Reported Attorney is Also Assigned Counsel for a Defendant in Treatment Court

         The judge says he/she reported a lawyer who is also assigned counsel for a defendant/participant in Treatment Court. The judge explains that standard procedure in that Court allows attorneys to submit an appearance waiver each time their clients appear; the attorneys are called in only if their client fails to comply with a Treatment Court requirement. The judge thus asks if he/she may preside in Treatment Court cases involving a participant represented by a lawyer the judge reported, provided that lawyer files a waiver of appearance. If so, the judge further asks if he/she must recuse once the attorney appears with his/her client.

         The judge is currently disqualified from all matters involving the reported attorney (see Opinion 16-146). That the attorney will not physically be present at most Treatment Court appearances does not change the reality that he/she, in fact, represents the defendant/participant and will be required to appear in some circumstances. Accordingly, the judge should disqualify him/herself from Treatment Court matters if the participant is represented by an attorney the judge reported, “while the disciplinary proceeding is pending, and for two years after it is resolved” (id.). As always, remittal is not available during this period unless the grievance committee imposes public discipline or the reported attorney waives confidentiality (id.).