Opinion 25-56

March 27, 2025

Digest:  A judge who learns of an ongoing investigation into possible misconduct by an attorney has complete discretion to determine whether he/she can be fair and impartial in the attorney’s cases.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinion 24-52; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring judge recently learned about an ongoing investigation into whether his/her co-judge is associated in the practice of law with a particular attorney within the meaning of Section 100.6(B)(3).  However, as far as the inquiring judge knows, the attorney is “not officially associated or a law partner of” his/her co-judge and there is currently a court order in effect compelling the court to accept the attorney’s filings.  On these facts, the judge asks if he/she may preside in matters where the attorney appears.

          A judge must always avoid the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, a judge must disqualify in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

          In our view, the judge’s “mere awareness” of an investigation of an attorney, without more, does not “suggest any personal animus or bias against the attorney or any personal conclusion of wrongdoing” (Opinion 24-52).  Under the circumstances, we conclude the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]).  Accordingly, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and may preside as long as the judge believes he/she can be fair and impartial.  Of course, if the judge concludes he/she cannot be fair and impartial, disqualification is mandated.