May 19, 2020
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).
This responds to your inquiry (20-67) asking whether you may preside over matters involving staff attorneys employed by the County Department of Social Services who are supervised by an attorney against whom you filed an ethical complaint approximately two years ago.
After a judge has filed a disciplinary complaint against an attorney, the judge must disqualify him/herself from matters involving that attorney during the pendency of the complaint and for two years after its resolution. However, the Committee has advised that 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 that they were not involved in the purported misconduct and the judge believes he/she can be fair and impartial.
Accordingly, with these caveats, you may continue to preside over cases prosecuted by attorneys who are supervised by the attorney against whom you filed an ethics complaint. We have recognized than an attorney who is the subject of a disciplinary complaint is ordinarily entitled to confidentiality. Therefore, you must not disclose that you reported the supervising attorney unless confidentiality regarding the complaint is waived.
Enclosed, for your convenience, are Opinions 16-146; 08-183/08-202/09-112; and 06-168 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice (Ret.)
Appellate Div., First Dep’t
Margaret T. Walsh
Supreme Court Justice