Disclosure of Reasons for Recusal
Where a judge plans to recuse from a matter without offering an opportunity for remittal, neither the Rules Governing Judicial Conduct nor the Advisory Committee's opinions have mandated disclosure of the judge's reasons. Indeed, as explained in Opinion 07-102, the Advisory Committee expressly left it to judges' discretion.
In December 2020, however, the legislature enacted Judiciary Law § 9 in order to require disclosure of a judge's reasons for recusal in certain circumstances.
This page offers a selection of published Advisory Committee opinions mentioning or discussing Judiciary Law § 9. It is not an exhaustive compilation, nor does it constitute legal advice; it is only intended as a starting point for ethics research.
Judiciary Law § 9
- Opinion 21-02 - Digest: "A judge who believes that the statutory obligation to provide a reason for discretionary recusal is unconstitutional may act in accordance with a legal determination made by the judge on the record, but may not conceal the true basis of the judge’s ruling."
- Opinion 21-45 - Digest: "Whether a judge who has reported an attorney to an attorney grievance committee may publicly disclose the reason for recusal, when confidentiality has not been waived, is a legal question we cannot resolve. (2) The judge may communicate privately with the reported attorney to advise them that a disciplinary complaint has been filed."
- Opinion 21-86 - Digest: "(1) A judge who reported a government attorney to the grievance committee must disqualify in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter. (2) What the judge must state on the record or in writing pursuant to Judiciary Law § 9, when confidentiality has not been waived, is a legal question we cannot resolve. (3) If the judge believes the attorney’s appearance on a case that had previously been handled by another colleague in the same governmental law office constitutes impermissible judge-shopping, the judge may report this conduct to the grievance committee."
- Opinion 21-97 - Digest: "We decline to comment on the appropriate scope of disclosure of a recusing judge under Judiciary Law § 9, as this is a legal question beyond our jurisdiction."
In addition, there are brief discussions in other opinions, such as:
- Level of Disclosure: Opinion 21-22(A) - see footnote 2 (suggesting that the statutorily required level of disclosure might be lower than the full disclosure required for the 'affirmative consent' of remittal).
- Personal/Embarrassing Exception: Opinion 21-48 - see footnote 1 (suggesting that a disciplinary proceeding against the judge's spouse might potentially fall within the statutory exception).
Finally, notwithstanding Judiciary Law § 9, the Committee has reaffirmed that, where the reason for disqualification is that the judge reported an attorney, the disqualification is not subject to remittal. See Opinions 22-64; 20-213 fn 3; see also e.g. Opinions 23-24; 22-164; 22-123; 22-122.
- Opinion 20-213 footnote 3: "Because remittal requires full disclosure of the basis for disqualification, sufficient for the parties and their counsel to freely and affirmatively consent to waive the conflict, we continue to believe remittal is not appropriate until and unless the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision" (citations and internal quotation marks omitted)