Opinion 16-16

January 28, 2016


Digest:         A judge who presided over two related civil actions may preside over the losing party’s subsequent malpractice action against its former counsel, only if the judge believes he/she can be fair and impartial.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i), (ii); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-121; 12-78; 10-38; 00-10; People v Moreno, 70 NY2d 403 (1987).



         The inquiring full-time judge presided over a lengthy landlord-tenant trial and a related ejectment suit. He/she decided both cases for the landlord, and the ejectment action was affirmed on appeal. The judge now presides over the tenant’s malpractice action against its former counsel. The tenant moved to disqualify the judge from the malpractice case, based only on claims related to the prior actions which appear to have little, if any, relevance to the malpractice action.1 Although he/she admittedly has “knowledge of the underlying case based upon [his/her] judicial duties,” the judge avers the allegations are otherwise unfounded and denies he/she has any personal bias, relationship to, or prejudice against the parties or properties in the prior actions. The judge believes he/she can remain fair and impartial in the malpractice case, but asks if recusal is nonetheless required.

         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 disqualify him/herself in a case where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other circumstances a rule or law requires(see generally id.; Judiciary Law § 14). For example, a judge must disqualify him/herself if “the judge has personal bias or prejudice concerning a party or” if he/she “has personal knowledge of disputed evidentiary facts” (22 NYCRR 100.3[E][1][a][i], [ii]). However, where a rule or law does not mandate disqualification, the judge “is the sole arbiter of recusal” (People v. Moreno, 70 NY2d 403, 405 [1987]).

         The Committee has previously advised disqualification is not mandated simply because one party files a complaint against the judge, provided he/she can be fair and impartial (see Opinions 14-121 [party appearing before the judge earlier filed a complaint against him/her with a government agency]; 10-38 [judge received written notice from the Commission that a party filed a complaint]; 00-10 [a defendant in a pending criminal action filed complaints against the judge with law enforcement authorities]). The Committee noted that “any rule requiring disqualification automatically whenever a litigant chooses to file a lawsuit, disciplinary complaint, or lien against a judge could enable disgruntled litigants to engage in ‘judge shopping’” (Opinion 14-121).2

         Here, the losing party in two civil actions before the inquiring judge is now, apparently for the first time, accusing him/her of partiality in the two actions. Strangely, the litigant has done so in a malpractice action against its former counsel, even though the alleged conflicts involve individuals unlikely to appear in the malpractice action and properties not at issue in that malpractice case. Critically, any knowledge the judge may have about the malpractice allegations comes solely from his/her adjudicatory duties in the prior civil actions (see Moreno, 70 NY2d at 405; Opinion 12-78 [“there is no per se requirement for disqualification where a judge only learned facts about a matter in a judicial capacity”]).

         On these facts, the Committee finds the judge’s impartiality cannot reasonably be questioned (see 22 NYCRR 100.[E][1]), and the judge’s disqualification is “within the personal conscience of the court” (Moreno, 70 NY2d at 405; see 22 NYCRR 100.[E][1][a]-[f]; Judiciary Law § 14). To hold otherwise would open a door to “judge shopping” and “only encourage and embolden imitators” (Opinion 14-121).

         Accordingly, this judge, who previously presided over two related civil actions, may also preside over the losing party’s malpractice action against its former counsel, provided the judge believes he/she can be fair and impartial.


    1 The tenant complains that certain unfavorable rulings “exhibited bias and hostility” or “were against the ‘weight of the credible evidence’”; alleges that the judge is related within the fourth degree to an individual who was not, to the judge’s knowledge, involved in the prior actions (and is unlikely to appear in the malpractice action); and also asserts the judge had certain personal financial interests in the prior actions. If the litigant believes these allegations are true and relevant, the litigant may, to the extent legally permitted, raise them in an appropriate forum.

    2 Disqualification is not required until and unless the Commission on Judicial Conduct formally charges the judge with misconduct (see e.g. Opinion 10-38).