Opinion 05-78

June 9, 2005

Digest:         A judge must disclose on the record, to the parties and their attorneys, that the judge was advised by one of the attorneys that his/her client threatened to kill the judge and an attorney representing another party to the proceeding. Whether the judge must disqualify himself/herself in these circumstances is a discretionary decision to be guided by the judge’s conscience.

Rules:          22 NYCRR 100.3(B)(6); 100.3(E)(1)(a)(i); Opinions 99-78 (Vol. XVIII; 96-95 (Vol. XV); People v. Moreno, 70 N.Y.2d 403 (1987); Corradino v. Corradino, 48 N.Y.2d 894, 895 (1979).

Opinion:

         An attorney advised a presiding judge that during a conversation with his/her client, the client threatened to kill both the judge and an attorney representing another party to a proceeding. The judge asks whether he/she must disclose the ex parte communication, whether such disclosure must be made on the record in the threatening party’s presence, and whether the judge must or may recuse him/herself from any further proceedings in the matter.

         Subject to certain exceptions not relevant to the present inquiry, “[A] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding. . .” 22 NYCRR 100.3(B)(6). In Opinion 96-95 (Vol. XV), where a judge received a letter from a bar association seeking to influence the judge’s decision on a motion to vacate a criminal conviction that had been affirmed on appeal, this Committee advised the judge to furnish a copy of the letter to the defendant’s lawyer, to the District Attorney, and to the Presiding Justice of the Appellate Division. In the present inquiry, although the source of the communication is a party’s attorney, the nature of the information conveyed is such that it is not privileged. That the information conveyed by the attorney is adverse to his/her client’s interests and concerns the safety of the judge as well as another attorney involved in the case warrants disclosure on the record and in the presence of all parties and their attorneys.

         With respect to recusal, a judge is disqualified in a proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge has a personal bias or prejudice concerning a party. 22 NYCRR 100.3(E)(1)(a)(i). In Opinion 99-78 (Vol. XVIII), this Committee advised a judge who was allegedly criminally harassed by the respondent in a custody case that recusal under such circumstances is within the judge’s discretion:

Based upon the information provided, it does not appear that there is a showing of grounds for mandatory disqualification under section 14 of the Judiciary Law. Nor does the judge indicate that as a result of the foregoing, ‘the judge has a personal bias or prejudice concerning a party’ 22 NYCRR 100.3(E)(1)(a)(i). Under such circumstances, as stated by the Court of Appeals in People v. Moreno, 70 N.Y.2d 40[3] (1987), the trial judge ‘is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court . . .’ 70 N.Y.2d at 405. But this does not mean that a judge, in the particular situation presented, need not consider whether it might be ‘the better practice for the court to [disqualify] itself and thus to maintain the appearance of impartiality.’ Corradino v. Corradino, 4[8] N.Y.2d 894, 895 (1979). However, we also note that among the circumstances to be considered by the judge is whether recusal might be deemed an encouragement for litigants to engage in extreme actions in order to secure the removal of a judge from a case. The Committee expresses no opinion in this regard but merely notes some of the factors to be considered by the judge in exercising discretion.

         Here, the circumstances are of a sufficiently similar nature as to warrant the same conclusion reached by the Committee in Opinion 99-78 (Vol. XVIII). Accordingly, the judge should exercise his/her discretion and be guided by the above stated considerations.