Opinion 16-23

March 16, 2016


Digest:         A judge is not required to appoint an expert whose competence he/she questions. If the judge believes he/she cannot be fair and impartial in weighing the expert’s testimony, he/she may not preside in cases involving the expert. Conversely, if the judge concludes he/she can be fair and impartial, the judge may preside, despite the expert’s apparent efforts to pressure the judge into appointing him/her.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1)(a)-(f); Opinions 14-121; 06-12; 05-125; 00-10; 96-114; People v Moreno, 70 NY2d 403 (1987).


         Based on his/her professional observations as a judge and/or as an attorney, the inquiring judge questions the competence of a doctor who frequently appears as an expert witness. The judge asks whether he/she must nonetheless appoint the doctor as an expert witness and whether the judge may preside in matters involving the doctor.1 The doctor is aware of the judge’s views, and has invited the judge to resolve the matter in a “confidential” manner or else risk “significant” recusal issues. The judge believes the doctor is attempting to pressure the judge to appoint him/her, by threatening to broadcast the doctor’s view of the situation2 and file a disciplinary complaint against the judge. Since receiving the apparent threats, the judge recused him/herself in one matter involving the doctor; the judge explains that, at this time, he/she cannot evaluate the doctor’s testimony in a fair and impartial manner. However, the judge asks whether disqualification is mandatory in future cases.


         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). For example, all appointments by a judge must be made “impartially and on the basis of merit” (see 22 NYCRR 100.3[C][3]). Additionally, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality “might reasonably be questioned” and in specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Where objective standards do not mandate disqualification, however, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         The Committee has advised that a judge need not appoint a law guardian (now referred to as “attorney for the child”) to any case if he/she believes the attorney is not competent, as a judge must exercise his/her appointment powers “impartially and on the basis of merit” (Opinion 05-125). Here, too, because the judge questions the competence of the doctor who wishes to be appointed, the appointment could run afoul of 22 NYCRR 100.3(C)(3) and, therefore, be impermissible. On these facts, the judge need not appoint the doctor as an expert.

Turning to the issue of disqualification, the Committee has advised that a judge need not disqualify him/herself when a party files a disciplinary complaint against the judge, until and unless the Commission on Judicial Conduct institutes formal charges (see Opinion 96-114). Similarly, disqualification is not mandated merely because a litigant has filed a lawsuit, disciplinary complaint, or lien against a judge (see Opinion 14-121); a criminal defendant has made complaints against the judge to law enforcement agencies and has published articles accusing the judge of a partisan conflict of interest (see Opinion 00-10); or an attorney who is the judge’s election opponent has threatened to file a disciplinary complaint against the judge (see Opinion 06-12). As the Committee has observed, any other result would encourage and enable “judge shopping” and “could be extraordinarily disruptive” (Opinion 14-121). While prior opinions have involved attempted pressure from attorneys or litigants, the same dangers are surely present where, as here, a doctor attempts to pressure a judge into appointing him/her as an expert. The Rules Governing Judicial Conduct do not require a judge to reward improper behavior by litigants, attorneys, or witnesses by giving them a veto over a particular judge. Thus, the doctor’s actions as described herein do not, in and of themselves, require the judge’s disqualification.


Thus, the sole question is “whether, under the circumstances presented, the inquiring judge can be fair and impartial, and whether the judge’s impartiality might reasonably be questioned” (Opinion 14-121). Significantly, “[t]he fact that the inquiring judge previously exercised recusal when a particular individual appeared does not necessarily require the judge to disqualify him/herself from all matters involving that individual in perpetuity” (id.).


         Here, as long as the judge concludes that he/she cannot be fair and impartial, disqualification is required. However, should the judge later conclude he/she is able to evaluate the doctor’s testimony in a fair and impartial manner, he/she may then preside over cases in which the doctor is involved.


         1 Even if the judge never appoints the doctor as an expert, cases in which another judge has appointed the doctor may be transferred or re-assigned to the judge, and the parties also may retain the doctor.

         2 For example, the doctor claimed in a letter it would be his/her duty “to inform all attorneys in any matter that I am professionally involved in” that the judge has “unresolved animus” toward him/her.