Opinion 09-21
March 12, 2009
Please Note: As of the Committee’s April 29, 2021 meeting:
(1) The Committee has not overruled its prior opinions prohibiting remittal of disqualification in matters where the basis for recusal involves the judge’s knowledge of an attorney’s disciplinary proceeding and confidentiality has not been waived.
(2) Opinion 21-45 discusses the apparent dissonance between Judiciary Law § 9 (eff. December 2020) and Judiciary Law § 90(10); we cannot resolve legal questions.
Digest: A judge who files a complaint with the Office of Court Administration’s Managing Inspector General for Fiduciary Appointments concerning alleged misconduct by an attorney purportedly acting pursuant to an appointment as a guardian must disqualify him/herself in any proceeding where the attorney appears as counsel and, depending on the circumstances in a particular case, may also be required to disqualify him/herself when the attorney acts in some capacity other than as counsel; such as guardian, court evaluator, or trustee; during the complaint’s pendency and for two years after the complaint is resolved.
Rules: Mental Hygiene Law §81.09; 22 NYCRR 36.3(e); 100.2; 100.2(A); 100.3(D)(2), 100.3(E); 100.3(E)(1); 100.3(F); Opinions 06-99; 05-37; 04-78, 91-56 [Vol. VII]; Joint Opinion 08-183/08-202/09-112.
Opinion:
The inquiring judge advises that he/she recently learned about conduct by a lawyer that the judge believes evinces a substantial likelihood that the lawyer committed a substantial violation of the Code of Professional Responsibility. Because the attorney engaged in the alleged misconduct while purportedly acting pursuant to appointment as a guardian and had been approved for guardianship appointments by the Office of Court Administration, the judge reported the alleged misconduct to the Office of Court Administration’s Managing Inspector General for Fiduciary Appointments (hereinafter IG). The judge advised the IG that he/she had not reported the matter to the District Attorney, the County Bar Association, the appropriate attorney grievance committee or any other officer or entity, but would defer to the IG’s expertise in determining what, if any, additional course of action might be warranted.
The inquiring judge asks whether he/she must disqualify him/herself only when the attorney appears as counsel during the pendency of the complaint filed with the IG or also when the attorney is involved in a guardianship matter as a court evaluator, a guardian, a trustee or in any other role?
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).
The Committee previously has advised that a judge who files a complaint against an attorney with an attorney grievance committee must disqualify him/herself in any case in which the attorney is involved while the complaint is pending (see Opinions 06-99; 05-37). While the judge in the present inquiry filed a complaint with the IG and not an attorney grievance committee, that does not diminish either the gravity of the complaint or the possibility that the judge’s impartiality might reasonably be questioned. Although the ultimate sanction available to the IG on the Chief Administrative Judge’s behalf is to remove an attorney from the list of persons eligible for appointment in guardianship proceedings (see 22 NYCRR 36.3[e]), it is no less severe than some of the sanctions available to an attorney grievance committee. Indeed, removing an attorney from the list of persons eligible for appointment in guardianship proceedings could materially impair the attorney’s income and reputation. Moreover, the Committee understands that the IG also may refer a matter to an attorney grievance committee or the appropriate criminal authority. Finally, it is clear from his/her inquiry that the judge at least considered referring the matter of the attorney’s alleged misconduct to the District Attorney, an indication that the alleged misconduct might be criminal in nature. Therefore, under these circumstances, the inquiring judge should disqualify him/herself during the pendency of his/her complaint to the IG in any matter when the attorney appears as counsel (see Opinions 06-99; 05-37).
The judge also asks whether he/she should disqualify him/herself in any proceeding where the attorney is involved in some capacity other than as counsel. For example, the attorney might be involved as a guardian, court evaluator, or trustee, or in some other similar role. Because the Rules Governing Judicial Conduct require a judge to disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), the judge’s disqualification is not limited to those cases where the attorney appears as counsel. Whether the judge must disqualify him/herself in a particular case will depend on a number of factors, such as the attorney’s specific role in the proceeding, whether and to what degree the proceeding is complex or adversarial, and the judge’s level of trust in the attorney given the particular proceeding. If the attorney is acting as a guardian in an adversarial context, the judge’s impartiality may reasonably be questioned, just as it would be were the attorney advocating as counsel for a party in a civil action. Where the attorney serves as a court evaluator -- assisting the court by marshaling assets and evaluating the potential incapacitated person’s mental and physical condition (see Mental Hygiene Law § 81.09) -- his/her roles are more akin to a court’s expert witness than an advocate. Yet in some contexts a judge’s previous contact with an expert witness may require recusal (see Opinions 04-78, 91-56 [Vol. VII]). Moreover, whatever the nature of the proceeding or of the attorney’s appointment, the judge will have to determine the attorney’s compensation, an issue that is sometimes highly contested and controversial. Indeed, the issue of compensation for fiduciaries was one of the reasons the Chief Judge enacted Part 36 and created the IG’s oversight of fiduciary appointments. Compensation may be a cause for recusal either in a particular proceeding, or in many. In view of these potential issues, the Committee suggests the judge should proceed with “judicial caution” (Opinion 04-78) and would be well advised to disqualify him/herself in all guardianship matters in which the attorney is involved, whether as a guardian, court evaluator, trustee, or the like, pending the outcome of the IG’s investigation (see 22 NYCRR 100.3[E][1]).
The Committee also previously has advised that a judge who files a complaint against an attorney with an attorney grievance committee must disqualify him/herself from presiding in any matter where the lawyer who is the subject of the complaint appears for a period of two years after the complaint is resolved (see Joint Opinion 08-183/08-202/09-112). It is the Committee’s view that the judge in the present inquiry also must disqualify him/herself for two years after the complaint he/she filed against the attorney with the IG is resolved (see id.).
Except in certain limited circumstances not relevant to the present inquiry, the parties to a proceeding in which a judge disqualifies him/herself may remit the disqualification (see 22 NYCRR 100.3[E]; 100.3[F]). However, where a judge disqualifies him/herself after filing a complaint against an attorney, the Committee has advised that the attorney’s right to confidentiality, both during a disciplinary proceeding and after it is resolved in his/her favor, is paramount (see Joint Opinion 08-183/08-202/09-112). “Therefore, ... disclosure in order to obtain remittal, either during the pendency of the proceeding or after it is resolved in the attorney’s favor, is never appropriate. Accordingly, a judge who files a disciplinary complaint against an attorney must disqualify him/herself during the pendency of the disciplinary proceeding when the attorney appears in the judge’s court and may not disclose the reason for his/her disqualification to effect remittal” (id.). Moreover, disclosure to obtain remittal during the two years after a disciplinary matter is resolved also is inappropriate both when the outcome is favorable to the attorney and when it is confidential (see id.).
The Committee notes that based on the facts presented, the inquiring judge took appropriate action when he/she initially reported the attorney’s alleged misconduct to the IG as opposed to reporting the attorney to a grievance committee. The Committee has learned, and the judge knew at the time he/she made the report to the IG, that if the IG determined that the attorney’s conduct so warranted, the IG would refer the matter to the attorney grievance committee. Furthermore, the judge had the opportunity to learn the outcome of the IG’s investigation to determine independently whether he/she should take the further step of reporting the attorney’s conduct to the attorney grievance committee. In fact, the judge did learn that the IG recommended to the attorney that he/she self-report to the attorney grievance committee and that the attorney agreed to do so. In addition, in a subsequent letter to the Committee, the inquiring judge related additional mitigating facts about the attorney’s conduct that also obviate the need for the judge to further pursue the matter. However, even had the attorney not agreed to self-report, given the absence of any new facts learned as a result of the IG’s investigation and the additional mitigating facts that the judge learned about the attorney’s conduct, whether to report the matter to the attorney grievance committee clearly was within the judge’s discretion.