Opinion 88-155

January 12, 1989

Topic:          (1) Propriety of interview of judge by counsel for respondents prior to subpoenaed appearance by judge, as a witness, in bar disciplinary proceeding.

(2) Propriety of judge’s appearance as witness in a bar disciplinary proceeding where appearance may result in judge’s recusal from pending case.

Digest:         (1) The decision by the judge whether or not to consent to be interviewed by counsel for the respondents prior to the judge’s subpoenaed appearance as a witness in a bar disciplinary proceeding presents no per se ethical question.

(2) The judge’s determination of a subsequent recusal motion because of the judge’s appearance as a witness is at the discretion of the judge, in accordance with the judge’s personal conscience.

Rules:          22 NYCRR §100.2(c); Canon 2 (B) Code of Judicial Conduct; CPLR Article 23.

Opinion:

         A judge has been served with a subpoena commanding the judge’s appearance as a witness before a disciplinary committee hearing panel. The panel is hearing charges concerning the conduct of attorneys in a case presided over by the judge, which is still pending before the judge. The attorneys who are the subject of the departmental disciplinary proceedings, and who have subpoenaed the judge no longer are involved in the case before the judge. The judge requests the Committee’s ethical advice.

         The first inquiry relates to the propriety of the judge agreeing to an interview by the attorneys’ counsel prior to the appearance by the judge before the disciplinary committee. We find no per se ethical prohibition in that regard. A judge as a witness is no different from any other witness and enjoys all of the rights, duties and obligations as set forth in CPLR Article 23. The judge must respond to the subpoena (CPLR section 2301) and is subject to sanctions for disobeying such a mandate (CPLR section 2300). If the judge feels that the subpoena should be quashed, modified or conditioned, CPLR 2304 provides the means for relief. The decision of any witness to be interviewed by counsel for any or all parties to a proceeding prior to a subpoenaed appearance is personal, and not ethical in nature. The choice here belongs to the judge. No authority mandates, requires or for that matter prohibits such pre-testimonial review. This is not a situation where a judge would be testifying voluntarily in a proceeding. See 22 NYCRR 100.2(c).

         The judge’s second concern relates to the possibility that such appearance before the disciplinary committee could be viewed as prejudicial and could result in a motion by the parties to the pending lawsuit for the judge’s recusal. This question also presents no ethical issue for consideration by this Committee. “The question of whether a Judge should recuse himself, to avoid an appearance of impropriety, is a matter left to the personal conscience of the court”. (See, People v. Patrick, 183 N.Y. 52, 75 N.E. 963; Poli v. Gara, 117 A.D.2d 786, 499 N.Y.S.2d 112; Casterella v. Casterella, 65 A.D.2d 614, 409 N.Y.S.2d 548, appeal dismissed 46 N.Y.2d 939, People v. Fischer, ___A.D.2d ___; 533 N.Y.S.2d 760, 761; see also, Johnson v. Hornblass, 93 A.D.2d 732, 733 for a discussion of recusal and disqualification.)