Joint Opinion 06-19 and 06-29
June 9, 2006
Please Note: (1) This opinion has been partially overruled, as Opinion 08-183/08-202/02-112 and its progeny require disqualification for two years after reporting an attorney to the grievance committee. (2) However, this change does not affect our conclusion that the judge need not recuse in matters involving other members of the Public Defender’s office under the facts presented. (3) In light of an apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10), we have advised: "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." See Opinion 21-45.
Digest: A judge who filed an attorney disciplinary complaint against the county Public Defender which the Grievance Committee later dismissed should disclose the making of the complaint for a period of two years when the Public Defender appears before the judge. Recusal is not required if the judge believes he or she can be impartial. The judge need not disclose when other members of the Public Defender’s staff appear.
Rules: 22 NYCRR 100.3(E)(1); Opinions 02-124; 02-96; 01-120 (Vol. XX); 98-159 (Vol. XVII); 98-138 (Vol. XVII); 97-102 (Vol. XVI).
A County Court judge inquires as to whether recusal is required when the county Public Defender or members of the Public Defender’s office appear before him or her, where the judge previously filed an attorney disciplinary complaint against the Public Defender. The disciplinary complaint was dismissed by the Grievance Committee without charges. The judge indicates that he or she is the only county judge in the county, and that approximately 40% of his or her caseload is handled by the Public Defender’s staff.
The Rules Governing Judicial Conduct provide that a “judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” 22 NYCRR 100.3(E)(1). In applying that provision, we have previously concluded that a judge should disqualify himself or herself in any matter involving an attorney against whom the judge has filed a disciplinary complaint, while the complaint is pending. Opinion 01-120 (Vol. XX); compare Opinions 02-96; 97-102 (Vol. XVI). In the matter before us, however, the Grievance Committee dismissed the complaint without charges. Thus, recusal is not required.
Nevertheless, despite the dismissal, we deem it advisable that the judge disclose the making of the complaint in matters involving the Public Defender for a period of two years. Under such circumstances, the judge need not recuse himself or herself provided that the judge, in the exercise of conscience, believes that he or she can be fair in matters involving the Public Defender. The judge need not disclose or recuse in matters involving other members of the Public Defender’s office. Opinions 02-124; 98-159 (Vol. XVII); 98-14 (Vol. XVI).