January 26, 2017
Digest: Where a judge’s recusal for one attorney is specific to his/her personal assessment of that attorney’s character, the judge is not disqualified from presiding in matters where that attorney’s law partner appears as a part-time government attorney, provided that the judge can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(B); 100.3(E)(1); 100.3(E)(1)(a); Opinions 16-146; 15-45; 14-90; 12-85(B); People v Moreno, 70 NY2d 403 (1987).
The inquiring judge is exercising disqualification in all matters involving a particular attorney, “Attorney A,” for reasons specific to the judge’s observations and assessment of Attorney A’s character. Attorney A maintains a private law practice with “Attorney B,” who is also a part-time government attorney. The judge asks if he/she must disqualify him/herself in matters where Attorney B appears as a government attorney. The judge emphasizes that his/her concerns about Attorney A’s character do not in any way implicate Attorney B. The judge does not have similar concerns about Attorney B’s character.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In particular, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][a]), or in other specific circumstances required by rule or law (Judiciary Law § 14). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
A judge’s disqualification based on a positive or negative social relationship with one attorney does not necessarily extend to the colleagues of that attorney (see Opinions 15-45; 14-90; 12-85[B]). Thus, the Committee has advised that a judge may continue to preside when the colleague of an attorney with whom he/she has a social relationship appears, provided the judge believes that he/she can be fair and impartial (see id.). Moreover, although this judge’s concerns about Attorney A apparently have not warranted a report to the grievance committee, this Committee notes that a judge who does file a disciplinary complaint against one attorney need not necessarily disqualify him/herself in matters involving other attorneys in the same office, “provided the judge is satisfied they were not involved in the purported misconduct and assuming he/she can be fair and impartial” (Opinion 16-146).
This judge advises that his/her view of Attorney A’s reputation or character does not in any way implicate Attorney B. Accordingly, the judge’s impartiality cannot reasonably be questioned when Attorney B appears as a government attorney in matters completely unrelated to Attorney A and their practice. Thus, if the judge believes that he/she can be fair and impartial, the inquiring judge may preside in matters involving Attorney B’s part-time practice as a government attorney.