Opinion 25-142
November 6, 2025
Digest: Where reporting to the attorney grievance committee is not ethically mandated, a judge’s decision to provide feedback about an attorney to the assigned counsel panel does not, without more, trigger any obligation to disclose or disqualify in matters where the attorney appears.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); Opinions 25-79; 23-242; 18-58; 16-145; 09-21; 08-215; 01-100/01-101.
Opinion:
In the inquiring judge’s jurisdiction, the assigned counsel panel “encourage[s] jurists to report concerns as they arise and not to wait for annual evaluations.” Accordingly, the judge recently provided negative feedback to the panel about an attorney who appeared before him/her. The judge expressly determined that the issues he/she observed did not warrant a report to the attorney grievance committee under Section 100.3(D)(2), but were nonetheless worth reporting to the assigned counsel panel. The judge subsequently learned that the panel “elected to treat the report as a complaint” and undertook an investigation, but ultimately decided not to refer the attorney to the grievance committee. The judge now asks if he/she must disqualify in matters involving this attorney for a two-year period after providing negative feedback to the assigned counsel panel.
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 in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).
We note initially that the judge’s obligations here are not affected by mere nomenclature. The key fact is that the judge provided an attorney evaluation to the assigned counsel panel; it is immaterial whether that evaluation is labeled as a “report” or “complaint”, or as “feedback”. Nor do we assign any weight to the assigned counsel panel’s independent decision to undertake its own investigation for possible referral to the grievance committee.
As the inquiring judge has not explained the nature or substance of his/her underlying concerns or issues, we also wish to emphasize from the outset that providing feedback on matters that do not rise to the level of misconduct — such as ordinary or isolated instances of lateness, unpreparedness, clumsy unfamiliarity with the rules of evidence, gum chewing or other lack of proper courtroom decorum, and the like — do not trigger a judge’s disciplinary obligations under Section 100.3(D)(2).
To understand the significance of a judge’s decision to report an attorney’s conduct to the assigned counsel panel rather than to the grievance committee, however, it will nonetheless be helpful to take a step back and review a judge’s disciplinary obligations. When a judge concludes that the two-prong test is met (i.e. that there is a “substantial likelihood” that an attorney committed professional misconduct, and that such misconduct, if proved, would constitute a “substantial violation” of the ethics rules), then the judge must take “appropriate action” (Opinion 25-79; 22 NYCRR 100.3[D][2]). But this does not necessarily mean reporting the attorney to the grievance committee in every instance. To the contrary, as described in Opinion 23-242 (citations omitted):
The action the judge must take depends on the nature of the misconduct, and is ordinarily left to the judge’s discretion. Only where the two-prong test is met and the alleged misconduct seriously calls into question an attorney’s honesty, trustworthiness, or professional fitness is there an affirmative duty to report the incident to the grievance committee so that the issue can be investigated.
This standard has two important implications. First, if the two-prong test is met and the conduct meets the threshold for mandatory reporting, a judge must report the conduct to the grievance committee. While the judge would also be free to report the conduct to the assigned counsel panel, doing so would not be an acceptable substitute. Second, and equally important, where reporting to the grievance committee is not mandated, a judge may exercise his/her discretion to decide that the “appropriate action” under the specific circumstances presented is (for example) to report the conduct to the assigned counsel panel. While the judge would also be free to report the conduct to the grievance committee, that would remain the judge’s own personal discretionary decision.
This approach reflects that the consequence of disqualification in all matters involving a reported attorney is a heavy burden, one that should be ethically mandated only when necessary. Certainly, if a judge concludes the conduct is so egregious that it must be reported to the grievance committee, or if a judge decides to exercise his/her discretion to make that report, disqualification is appropriate. But if a judge concludes that the apparent misconduct, although serious, does not warrant a disciplinary referral and then chooses to take other appropriate actions without reporting the attorney to the grievance committee, whether the judge’s impartiality can “reasonably be questioned” thereafter depends on the circumstances (22 NYCRR 100.3[E][1] [emphasis added]).[1]
We understand that the assigned counsel panel’s mandate is to ensure indigent defendants’ constitutional or statutory right to counsel, notwithstanding any economic or systemic disincentives for attorneys to undertake such work. We also recognize “that the judiciary is responsible to protect and ensure the constitutional right of indigent criminal defendants to competent representation, [and] judges are uniquely positioned to give valuable input on such issues” (Opinion 08-215; see also e.g. Opinions 16-145; 01-100/01-101). In our view, a judge’s decision to provide a frank and timely evaluation of an attorney’s conduct to the assigned counsel panel is best seen as an effort to ensure the constitutional right of indigent defendants and improve the administration of justice, rather than as the functional equivalent of initiating a disciplinary proceeding. Indeed, early reporting of issues and concerns could potentially benefit the reported attorney if the panel’s guidance, interventions or reassignments spur the attorney to improve his/her performance and avoid professional discipline in the future. By contrast, requiring judges to disqualify after providing negative feedback to the assigned counsel panel would discourage judges from raising concerns that may need to be addressed and undermine the panel’s ability to perform its core functions.
Accordingly, where reporting to the attorney grievance committee is not ethically mandated, we conclude that a judge’s decision to provide feedback about an attorney to the assigned counsel panel does not, without more, trigger any obligation to disclose or disqualify in matters where the attorney appears. On the facts presented, this judge may continue to preside in matters involving an attorney he/she reported to the assigned counsel panel, provided the judge can be fair and impartial.
[1] For example, we reached very different conclusions where a judge’s concerns about an attorney appearing as a fiduciary are reported to a lawyer assistance committee (see Opinion 18-58) rather than to the Managing Inspector General for Fiduciary Appointments (see Opinion 09-21).