Joint Opinion 03-93/04-32

June 28, 2004

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A Housing Court judge is not required to recuse or offer to recuse, solely because an attorney appearing before the judge is also a member of the Advisory Council of the Housing Part of the Civil Court of the City of New York.

Rules:          22 NYCRR 100.3(E)(1).

Opinion:

         In Opinion 03-93, the Committee addressed the question posed by a judge of the Housing Court of the Civil Court of the City of New York as to the obligation, if any, of a Housing Court judge to disqualify him/herself in proceedings where one of the attorneys is a member of the Advisory Council for the Housing Part of the Civil Court.

         The Committee concluded that, under such circumstances, there should be an offer to recuse, subject to remittal, unless the lawyer/member’s three year non-renewable term on the Advisory Council expires before it “passes” on the judge’s reappointment; except that if the adversary party is self- represented, the recusal should be sua sponte and the case transferred to another judge. In Opinion 04-32 the Committee concluded that the same restrictions applied to the lawyer-member’s law firm itself.

         However, upon further consideration of the matter, we are now of the opinion that neither recusal nor the offer to recuse should be regarded as mandatory. Our change of view flows from a more precise understanding of the multiple roles of the Advisory Council and of its composition. As pointed out in Opinion 03-93, the Advisory Council does make recommendations as to reappointments, but it does not “pass[es] on the judge’s reappointment” as stated in the digest to Opinion 03-93. Indeed, it is but one entity that has an advisory role in reappointment along with bar associations and other interested parties, including, of course, the administrative judge who is charged with ultimate responsibility to oversee the operation of the Housing Court. In short, although recommendation by the Advisory Council for one’s initial appointment to the Housing Court is required before the initial appointment may be made, a favorable recommendation is not required for reappointment, nor once a recommendation is made, favorable or not, is it determinative of whether reappointment will be granted.

         Thus, the weight to be given to its recommendation on the question of reappointment cannot be regarded as virtually dispositive of the issue, as we indicated in our original opinion. Indeed, the Advisory Council itself, by virtue of its broad membership, cannot be regarded as a monolithic entity. The influence of advocates for any particular point of view in landlord-tenant disputes is diffused and cannot be regarded as decisive of whether the Council as a whole will recommend reappointment in any particular instance.

         Taken together, the clearly limited role of the Advisory Council in the reappointment process, and the even more limited influence that any particular attorney might have on the deliberations and decisions of the 14 member Advisory Council itself, compel us to alter our earlier views.

         Accordingly, we now conclude that neither recusal nor the offer to recuse is mandatory when appearances are made by attorneys who also happen to be on the Advisory Council. In short, the fact of membership alone does not give rise to a necessary inference that the judge’s impartiality and independence are compromised or might be reasonably perceived to be compromised in such a situation. 22 NYCRR 100.3(E)(1).