Opinion 17-56
May 4, 2017
Please Note: Opinion 22-64 states "To protect the attorneys' right to confidentiality, the judge may not reveal the reason for the disqualification except to the extent required by law, an issue on which we cannot comment (see Opinion 21-45; Judiciary Law §§ 9; 90[10]). Finally, '[b]ecause remittal requires full disclosure of the basis for disqualification, sufficient for the parties and their counsel to freely and affirmatively consent to waive the conflict, we continue to believe remittal is not appropriate until and unless the attorney waives confidentiality, or the grievance committee issues a public disciplinary decision' (Opinion 20-213 fn 3 [citations and internal quotation marks omitted])."
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 1240.2(i); Opinions 17-03; 16-146; 15-138/15-144/15-166; 14-88; 08-183/08-202/09-112; 06-168; 06-19/06-29; People v Moreno, 70 NY2d 403 (1987).
Opinion:
A judge reported an attorney to the grievance committee for two separate incidents. The attorney has given the judge a copy of a confidential Letter of Advisement (see 22 NYCRR 1240.2[i]) which disposes of one incident, but is silent as to the other. The judge suggests the post-disposition period should run from the date of the Letter of Advisement, although he/she does not know whether the second incident “remains under investigation, or is to be considered resolved by the letter.” The judge asks whether remittal of disqualification is available if the attorney waives confidentiality, and whether the disqualification extends to the attorney’s entire law firm, including any partners, associates and/or “of counsel” attorneys.
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]). Therefore, a judge must disqualify him/herself from any proceeding in which his/her “impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
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). Here, the two-year post-disposition period has not yet begun to run, as the Letter of Advisement only addresses one of the two reported incidents and the judge has not learned whether the second incident is closed or resolved.
In light of the reported attorney’s right to confidentiality, both during the disciplinary proceeding and after it is resolved in his/her favor (see Opinion 08-183/08-202/09-112), the judge may not disclose that he/she filed a complaint and, therefore, the disqualification may not be remitted, unless the attorney waives confidentiality or the grievance committee issues a published disciplinary opinion (see Opinions 14-88; 15-138/15-144/15-166).
Here, the judge suggests the attorney “has expressed a desire” to waive confidentiality. If he/she waived confidentiality for both reported incidents, so the judge can now make full disclosure when the attorney appears, then the parties and their counsel may remit disqualification in appropriate circumstances.
As always, remittal is prohibited if a party appears without counsel, if the judge is unwilling or unable to make full disclosure of the basis for disqualification, or if the judge doubts his/her ability to be impartial. 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 e.g. Opinion 17-03 fn 3; 22 NYCRR 100.3[F]).
Finally, we have advised that a judge who reports an attorney “is not necessarily disqualified” from presiding over cases involving “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” (Opinion 16-146; see also Opinions 06-168 [law firm partners and associates of reported attorney]; 15-138/15-144/15-166 [subordinates or colleagues of reported prosecutor]; 06-19/06-29 [subordinates of reported Public Defender]). Accordingly, this judge may preside when other members of the reported attorney’s law firm appear, provided the judge is satisfied they were not involved in the purported misconduct and assuming the judge can be fair and impartial.