Opinion 21-107

June 17, 2021


Digest:         Provided the judge can be fair and impartial, a judge need not disqualify from all cases involving a former opposing counsel, even though the judge had, as an attorney, criticized the opposing counsel’s conduct in a letter to the tribunal.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(B)(7); 100.3(E)(1); 100.3(E)(1)(b)(i); 100.3(F); Opinions 20-48; 09-123/09-143; 93-73; People v Moreno, 70 NY2d 403 (1987).


         The inquiring full-time judge previously served as a prosecutor and, in that capacity, was adverse to a particular defense counsel on multiple occasions. In one criminal case, less than two years ago, the inquirer wrote a letter to the tribunal1 criticizing defense counsel’s arguments in the case. The defense counsel now characterizes the letter as “a ‘de facto’ ethical complaint” and is asking the inquiring judge to recuse from all of their cases.

         As the inquirer asks if disqualification is ethically mandated here, we have reviewed a copy of the letter. It criticizes defense counsel’s “pattern of disparaging comments” and requests that the tribunal a) “closely monitor the accusations” made by the attorney; b) make a pre-trial ruling that “no reference to a political or campaign promise be made” during the trial; and c) prohibit the attorney from expressing “unfounded opinions as to any personal or professional motivation of their opposing counsel.” However, the inquiring judge never reported the attorney to the grievance committee and notes that the letter strictly pertained to defense counsel’s conduct in that one particular case. The judge is confident in their own ability to be fair and impartial in any cases involving the attorney, now that they are no longer litigation adversaries, and is mindful of their “completely different role as judge.”

        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]). A judge must therefore disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, a judge is disqualified, without the possibility of remittal, when “the judge knows that ... the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; 100.3[F]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         Even with respect to part-time attorney judges who are currently engaged in the private practice of law, however, we have found that mere professional opposition in criminal matters does not, without more, provide a reasonable basis to question the judge’s impartiality (see Opinions 20-48; 09-123/09-143; 93-73). As noted in Opinion 20-48 (citation omitted):

It is a common practice for justices who are permitted to practice law to be adversarial in their private practices against district attorney’s offices, ... and such practice clearly is permitted without the attorney-justice having to recuse himself or herself from presiding over matters involving the District Attorney’s Office in his or her own jurisdiction.

We note the inquiring judge did not, in fact, make a formal or informal complaint against the defense counsel to the attorney grievance committee, but only sought relief from the tribunal in the context of one particular criminal case.2

         On these facts, we conclude the judge’s impartiality cannot “reasonably be questioned” in matters involving this defense counsel (22 NYCRR 100.3[E][1]). Accordingly, provided the judge can be fair and impartial, they need not disqualify from all cases involving their former opposing counsel merely because they criticized the opposing counsel’s conduct in a letter to the tribunal. Of course, the judge must disqualify if they conclude, in their sole discretion, that they have a personal bias or prejudice in a particular matter, or that specific circumstances create an appearance of impropriety in that matter (cf. People v Moreno, 70 NY2d at 405 [“This discretionary decision is within the personal conscience of the court”]).


1 For clarity, we refer to the judge presiding over the criminal case as “the tribunal.”

2 While litigators sometimes draw a court’s attention to purported deficiencies in opposing counsel’s behavior, we note that a court’s primary goal is typically to resolve the substantive legal and factual disputes in the case “promptly, efficiently and fairly” (22 NYCRR 100.3[B][7]). It is the province of grievance committees, not individual trial-level judges, to investigate disciplinary complaints and determine whether or not an attorney is fit to practice law.