January 30, 2014
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.
Please Note: This opinion has been modified or overruled to the extent it suggests a judge’s obligation completely ends when the litigation terminates. See Opinion 20-63.
Digest: A judge who has sued the Public Defender is disqualified, subject to remittal, in matters where the Public Defender personally appears, but may preside in matters where assistant public defenders subject to the Public Defender’s supervision appear.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 12-162; 11-64; 09-138; 08-165; 08-59; 07-206; Joint Opinions 13-124/13-125/13-128/13-129; 08-183/08-202/09-112; 06-19/06-29; People v Moreno, 70 NY2d 403 (1987).
The inquiring judge is the plaintiff in an action against the Public Defender of the county in which the judge presides.1 The Public Defender has taken the position that “an inherent conflict of interest exists with respect to the appearance of any of the attorneys of the [**********] County Public Defender’s Office before you,” and therefore has asked the judge to recuse him/herself in all cases in which the Public Defender’s office appears. The judge indicates that the Public Defender has seldom, if ever, appeared personally in the court in which the judge serves, and states that he/she can be fair and impartial in matters involving litigants who are represented by the Public Defender’s office.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must therefore disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E]).
There are two initial objective tests to determine whether disqualification is mandatory: Is disqualification required under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][a]-[f]) or Judiciary Law § 14? If not, might the judge’s impartiality nonetheless “reasonably be questioned” (22 NYCRR 100.3[E])? If disqualification is not mandated under either objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, remittal is unavailable and, therefore, he/she must not preside (see Opinion 11-64).
Applying these principles to this inquiry, the first question is easily answered: the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14).
As for the second question, the Committee notes that the circumstances described would create a reasonable basis to question the judge’s impartiality in matters where the Public Defender in person appears before the judge. The Committee has previously advised that a judge is disqualified, subject to remittal, in cases involving an insurance company that insured the defendant against whom the judge had commenced a civil action (see Opinion 07-206) and in cases involving a municipality when a judge is a named plaintiff in a lawsuit against that municipality (see Opinion 08-59). Similarly, the Committee concludes that the inquiring judge is disqualified, subject to remittal, when the Public Defender personally appears before the judge while the lawsuit is pending.2
A different analysis applies, however, with respect to assistant public defenders from the Public Defender’s office. Although it appears that the Committee has not previously addressed the extent of a judge’s ethical obligations when a judge is involved in civil litigation against a party opponent who is the head of a public law office, the Committee believes that the circumstances described here do not create any objectively reasonable basis to question the judge’s impartiality when assistant public defenders from the Public Defender’s office appear before the judge (see 22 NYCRR 100.3[E]). Indeed, the Committee has previously advised that a judge who filed a disciplinary complaint against the Public Defender is not disqualified when other assistant public defenders from the same office appear before the judge (see Joint Opinion 06-19/06-29, overruled in part3 by Joint Opinion 08-183/08-202/09-112). Somewhat further removed from the instant inquiry, the Committee has also advised that a judge whose child is currently represented by the Public Defender may preside in cases involving other assistant public defenders from the same office who are not involved in representing the judge’s child (see Opinion 08-165).
The Committee notes that the Public Defender’s request for the judge’s disqualification appears to rest on an assumption that the judge would be incapable of presiding fairly over criminal charges against a defendant, merely because that defendant is represented by an attorney who is subject to the supervision of an individual who is the judge’s party adversary in civil litigation. Absent evidence of extraordinary circumstances that would actually support such an assumption, the Committee “cannot countenance a rule that would unnecessarily force the inquiring judge, and all similarly situated judges, to choose between seeking redress of legitimate wrongs and fulfilling the responsibilities of their judicial office” (Opinion 12-162).
Under the circumstances presented, the Committee believes the judge’s impartiality cannot reasonably be questioned when assistant public defenders subject to the Public Defender’s supervision appear to represent criminal defendants in the judge’s court. Because disqualification is not mandated under the applicable objective standards, the judge is “the sole arbiter of recusal” and this “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 ).
Provided the judge concludes that he/she can be fair and impartial in the case before him/her, the judge need not disqualify him/herself or disclose the existence of his/her litigation against the Public Defender in matters where other assistant public defenders subject to the Public Defender’s supervision appear.
Of course, given the constitutional dimensions of a judge’s duties presiding in criminal cases (see e.g. Joint Opinion 13-124/13-125/13-128/13-129), the Committee trusts the inquiring judge will continue to search his/her conscience as circumstances may warrant, to ensure he/she can be fair and impartial.
1 Claims are asserted against the Public Defender in his/her individual and official capacities.
2 Where permitted, remittal is a three-step process. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see Opinion 09-138; 22 NYCRR 100.3[F]).
3 To the extent that Joint Opinion 06-19/06-29 requires a judge to disclose that he/she filed a disciplinary complaint against the Public Defender, it has been overruled. Joint Opinion 08-183/08-202/02-112 recognizes that “the attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, is paramount.”