Opinion 16-146

October 20, 2016

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 a judge previously reported an attorney to the grievance committee. 

(2) With respect to whether a judge may publicly disclose the reason for recusal here, in light of the 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 (but noting that private disclosure to the reported attorney is ethically permissible).

Digest:         (1) A judge who has filed a disciplinary complaint against the District Attorney is disqualified while the disciplinary proceeding is pending, and for two years after it is resolved, in any case where the District Attorney personally appears. Remittal is not available during this period unless the grievance committee imposes public discipline or the District Attorney waives confidentiality. (2) The judge may preside in cases where assistant district attorneys of the same office appear, even though the District Attorney is counsel of record, provided the judge is satisfied they were not involved in the District Attorney’s purported misconduct and assuming he/she can be fair and impartial.

Rules:          22 NYCRR 100, Preamble; 100.1; 100.2(A); 100.3(D)(2)-(3); 100.3(E)(1); Opinions 16-141; 15-138/15-144/15-166; 15-58; 08-183/08-202/09-112; 06-168; 06-19/06-29.

Opinion:

The inquiring judge filed a disciplinary complaint against the District Attorney based on a new policy the District Attorney has applied to the judge’s court.¹ Although the policy is necessarily executed by the assistant district attorneys who actually appear in the judge’s court, the judge believes those attorneys did not participate in setting the policy. Indeed, the judge has not filed disciplinary complaints against the assistant district attorneys, and is confident he/she can be fair and impartial when they appear in his/her court. The judge will disqualify him/herself if the District Attorney appears, but asks whether he/she may preside when an assistant district attorney appears.

A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

The Committee has advised that if a judge “files a formal or informal complaint against [an] attorney, the judge must disqualify him/herself in all cases involving that attorney while the disciplinary matter is pending and for two years thereafter” (Opinion 15-138/15-144/15-166). This applies to the District Attorney whom the judge has reported. Moreover, in light of the District Attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor, the judge may not disclose that he/she filed a complaint, and therefore the disqualification may not be remitted (see Opinion 08-183/08-202/09-112). Thus, unless the District Attorney waives confidentiality or the grievance committee issues a published disciplinary opinion, remittal is not permitted (see Opinion 15-138/15-144/15-166).

Conversely, a judge is not necessarily disqualified from presiding over other attorneys in the same public or private law office as the reported attorney, provided the judge is satisfied they were not involved in the purported misconduct and assuming he/she can be fair and impartial (see Opinions 15-138/15-144/15-166 [judge may continue to preside in matters involving subordinates or colleagues of a prosecutor the judge reported]; 06-168 [judge may preside in matters involving law firm partners and associates of the reported attorney]; 06-19/06-29 [judge may preside in matters involving assistant public defenders who are subordinates of a Public Defender the judge has reported]).

When a judge is disqualified from matters involving a District Attorney, the disqualification generally applies to all matters involving the office because the District Attorney is the attorney of record for all cases filed by his/her office (see e.g. Opinions 16-141; 15-58). However, the Committee has specifically rejected that principle where a judge has reported the Public Defender to a grievance committee (see Opinion 06-19/06-29 [permitting the judge to preside in matters involving assistant public defenders]). The Committee believes the same exception applies when a judge reports the District Attorney. Indeed, a contrary rule could unduly interfere with a judge’s discharge of disciplinary responsibilities under Section 100.3(D)(2). That is, a judge with a large criminal caseload might be reluctant to report the District Attorney or the Public Defender -– even for extremely serious misconduct that calls into question his/her fitness as an attorney -- if it meant the judge could no longer preside in any matters whatsoever involving those offices. Given that “[a]cts of a judge in the discharge of disciplinary responsibilities are part of a judge’s judicial duties” under the Rules (22 NYCRR 100.3[D][3]), the Committee wishes to limit the administrative difficulties that result from proper discharge of those duties (cf. 22 NYCRR 100, Preamble [“The rules governing judicial conduct are rules of reason.”]).

This judge has not filed a disciplinary complaint against any assistant district attorney and, instead, believes such attorneys have not personally committed any misconduct whatsoever as they did not participate in establishing the District Attorney’s allegedly improper policy. Accordingly, the judge may continue to preside over cases prosecuted by the assistant district attorneys, provided he/she can be fair and impartial in the matter (see Opinions 15-138/15-144/15-166; 06-168; 06-19/06-29). In light of Opinion 08-183/08-202/02-112, the judge must not disclose that he/she reported the District Attorney unless confidentiality is waived.

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            ¹ The judge believes the policy significantly hinders the administration of justice and was adopted for improper and unprofessional reasons.