If a lawyer in a firm is subpoenaed to testify against a judge in a Commission on Judicial Conduct proceeding, can the firm's other lawyers keep appearing before that judge?

Plain-English summary

A lawyer was subpoenaed to testify before the Commission on Judicial Conduct in a confidential proceeding against a sitting judge. The lawyer did not expect to appear before that judge, but his partners and associates did. The committee answered three questions: whether the firm's lawyers must ask the judge to recuse himself, whether opposing counsel must be told, and whether the firm's clients must be told. Because Commission proceedings are confidential under Judiciary Law section 45 unless the judge waives confidentiality or the matter ends in public sanction, the committee framed the problem as a "shared secret" between the judge, the witness lawyer, and the firm.

On recusal, the committee applied Canon 3C(1) of the Code of Judicial Conduct, under which a judge should disqualify himself when his impartiality might reasonably be questioned. While a judge's mere dislike of, or gratitude toward, counsel does not ordinarily compel recusal, the committee found this situation different: a witness in a pending judicial-discipline matter holds potential leverage over the judge's reputation and career, so the judge's impartiality could reasonably be questioned whether or not the testimony favors the judge. Because knowledge is imputed among partners, the committee held the judge should recuse not only from matters in which the witness appears but also from matters in which the witness's partners and associates appear. The committee located the duty in judicial ethics, not substantive disqualification law, citing Johnson v. Hornblass and N.Y. State 574 for the principle that the appearance of partiality must be avoided.

The committee held that remittal of the disqualification under Canon 3D should be possible, but that it requires disclosure to all counsel and clients, so the judge is under no obligation to seek remittal and may instead simply recuse and say nothing. If the judge neither recuses nor discloses, the firm's lawyers cannot let the case proceed: drawing on EC 7-39, EC 9-2, and the principle behind DR 1-103(B) and DR 7-110(B), they have a duty to keep the judge from presiding over a case they know the judge should not retain. Because Judiciary Law confidentiality may bar full disclosure, the committee said their practical course is to ask the judge to recuse and, failing that, to seek to withdraw under DR 2-110(A) while maintaining confidentiality (EC 1-5; DR 1-102(A)(5)). Even so, the firm can and should tell opposing counsel that a partner has been subpoenaed in a matter of great importance to the judge, and must advise its own clients before the judge so they can decide whether to change firms, keeping all such disclosures within the law. The committee answered all three questions yes.

Currency note

This opinion was issued in 1989, under New York's former Code of Professional Responsibility and the former Code of Judicial Conduct, which New York has since replaced with the Rules of Professional Conduct (2009) and the Rules Governing Judicial Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm keep appearing before a judge when one of its lawyers is a witness against that judge?

A: Not without disclosure and remittal. The committee held the judge should recuse from matters in which the witness or the witness's partners and associates appear, so the firm cannot proceed before the judge absent the judge's disclosure and a valid remittal of the disqualification.

Q: Does it matter whether the lawyer's testimony helps or hurts the judge?

A: No. The committee held that the witness holds potential leverage over the judge's career regardless of the content of the testimony, so the judge's impartiality could reasonably be questioned either way.

Q: What must the firm do if the judge will not recuse or disclose?

A: The committee held the firm must ask the judge to recuse and, failing that, seek to withdraw under DR 2-110(A) while preserving the confidentiality of the Commission proceeding.

Q: Must opposing counsel and the firm's own clients be told?

A: Yes, within legal limits. The committee held the firm should tell opposing counsel that a partner was subpoenaed in a matter important to the judge, and must advise its own affected clients so they can decide whether to retain other counsel.

Background and rules framework

The opinion interpreted the New York Code provisions on conduct prejudicial to the administration of justice (DR 1-102(A)(5)), reporting and the lawyer's duty to the system of justice (DR 1-103(B); EC 7-20, 7-39, 9-2), withdrawal (DR 2-110(A)), and improper influence on a tribunal (DR 7-110(B)), read together with Canons 2, 3C(1), and 3D of the Code of Judicial Conduct and the confidentiality command of Judiciary Law section 45. The closest Model Rule analogues are Rule 1.16 (withdrawal) and Rule 8.3 (a lawyer's reporting obligations), with the judicial-conduct analysis governed by the canons on disqualification and remittal.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation)
• MR 8.3 (reporting professional misconduct)
• NY DR 1-102(A)(5); DR 1-103(B); DR 2-110(A); DR 7-110(B); EC 7-20, 7-39
• Code of Judicial Conduct Canons 2, 3C(1), 3D

Statutes:

• Judiciary Law sec. 44, 45: confidentiality of Commission on Judicial Conduct proceedings

Cases:

• Johnson v. Hornblass, 93 A.D.2d 732 (1st Dep't 1983): judicial ethics may call for recusal even absent statutory disqualification
• Nicholson v. State Commission on Judicial Conduct, 67 A.D.2d 649 (1st Dep't 1979): confidentiality of Commission proceedings

Other opinions cited:

• N.Y. State 574 (1986): the reasonable perception of partiality and the appearance of impropriety
• N.Y. State 548 (1983): recusal is primarily the judge's responsibility

See also

• NY State Bar Op. 617: ALJ disqualification after agency or staff service
• NY State Bar Op. 632: Disqualification of a part-time judge and the judge's firm

Source

• Landing page: https://nysba.org/opinion-602/