Opinion 17-44

March 16, 2017

Digest:         A judge who believes a local attorney is under criminal investigation, but has no personal knowledge of any impropriety, may continue to preside in matters involving that attorney, provided the judge concludes he/she can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 16-43; 14-39; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The justices of a local court have inferred, based partially on information received in the course of their official duties, that a prosecutor may be investigating a local attorney for certain litigation practices that allegedly take place away from the courtroom. However, although the target attorney regularly appears before them, the justices have no personal knowledge of any impropriety. The judges ask if they may continue to hear matters involving the target attorney, while the criminal investigation is apparently ongoing.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself as required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]) and in any other case where his/her impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         Although this seems to be a matter of first impression, two prior opinions suggest the judges’ impartiality cannot reasonably be questioned here. In Opinion 14-39, an attorney disclosed to a judge ex parte “that the attorney ‘[was] under indictment.’” The Committee did not even consider the possibility that the judge could not continue to preside in the matter. To the contrary, the Committee advised the judge need not make any disclosure, provided “that the indictment does not relate to the matter before the judge, and further assuming that the judge can decide the case without reference to the attorney’s ex parte communication” (Opinion 14-39). Somewhat further removed, in Opinion 16-43, the Committee advised that a criminal court judge who presided over an ex parte search warrant application may later arraign (1) a confidential informant who testified in support of the warrant and/or (2) the target of the search warrant, provided he/she can be fair and impartial (see Opinion 16-43).¹

         Here, too, the Committee believes the judges’ impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1] [emphasis added]) on the facts presented. Accordingly, they may continue to preside in matters involving the target attorney, provided they conclude, in their sole discretion, they can be fair and impartial in matters where the attorney appears.

         Of course, if either judge questions his/her own impartiality in a particular case, he/she must not preside.

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