December 19, 2011
This responds to your inquiry (11-113) asking whether you must disqualify yourself if you file a disciplinary complaint against an attorney when that attorney thereafter appears before you. He/she is one of three agency attorneys who appear regularly, but randomly, in your court.
The Committee has previously determined that a judge who files a formal complaint or makes an informal report to a disciplinary authority which results in charges of misconduct against an attorney is disqualified from presiding over matters in which that attorney appears before the judge, during the pendency of the disciplinary matter. Remittal is not available because the required disclosure which precedes any remittal would breach the confidentiality of the disciplinary process. If disqualification occurs frequently, you should consult your administrative judge about any administrative measures that might be available.
As for the other two agency attorneys, you need not disqualify yourself when those attorneys appear before you solely because you have filed a disciplinary complaint against their colleague.
Enclosed, for your convenience, is Joint Opinion 08-183/08-202/09-112 which addresses this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)