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Advisory Opinions

AO-107-07 and 108-07

Opinion No.: AO-107-07, AO-108-07
November 27, 2007

Digest: An ALJ with extensive prior work experience in the criminal justice system hears licensing cases where the individual's criminal record may be relevant. With respect to individuals whose cases the ALJ helped prosecute, the ALJ must disqualify himself or herself from any cases in which he or she served as a prosecutor. The ALJ need not disqualify himself or herself from a case where he or she gained prior familiarity with the facts because the case or a related matter was one he or she handled while serving as a judicial clerk.

Rule: 48 RCNY Appendix A: "Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York," Sections 102(A), 103 (A)(5), 103(D)(1).

Opinion: ALJs must at all times perform their "duties with impartiality" §103(A)(5), "[un]swayed by partisan interests, public clamor or fear of public criticism." §103(A)(1). Equally important, they must be seen to be doing so. Therefore, the general requirement of §103(D)(1) is that an ALJ should "disqualify himself or herself in a[ny] proceeding in which the City administrative law judge's impartiality might reasonably be questioned." This buttresses the requirement that an ALJ avoid "impropriety and the appearance of impropriety." §102.

In identifying instances in which the ALJ's impartiality might be reasonably questioned, the Rules of Conduct specifically note that the ALJ shall disqualify himself or herself where he or she has been employed to work as a "counsel, advisor or material witness in the matters in controversy." §103(D)(1)(c). Thus, work as a judicial officer or judicial clerk would not require disqualification because it is not a covered form of employment. Moreover, because it does not appear that the licensing hearing directly makes the prior criminal conviction one of "the matters in controversy" before the ALJ the prior employment in the district attorney's office would not, under this subsection, demand disqualification.

The standard of reasonableness under §103(D)(1), however, would still apply: whether or not a reasonable person might question the judge's ability to handle a matter fairly. Here, the relationship of a prosecutor to a criminal case, viewed from the perspective of the reasonable observer, is that of a zealous advocate. While the prosecutor has a duty to pursue justice, a reasonable person cannot help believing that it is natural for a prosecutor to believe in the case that he or she is presenting and to have strong feeling about it that may or may not conform to the actual outcome. For example, the prosecutor may believe the defendant deserved a more severe punishment than that rendered by the trial judge. Thus, a reasonable person may consider the possibility that an ALJ reviewing a case involving that same defendant may be tempted to re-litigate the underlying criminal conviction so as to exact a punishment more exacting than that already executed, raising concerns not only under §103(D)(1) but also under §102(A). A judicial clerk, however, would not reasonably be viewed as an advocate. Therefore, the ALJ need not disqualify himself or herself from a case where he or she has familiarity with the facts obtained while handling the case or a related matter as a judicial clerk.

Because this disqualification arises due to the concerns over the possible appearance of partiality, disqualification may be remitted pursuant to §103(E)(1). As previously noted, the strict disqualification and prohibition of remittal for a lawyer handling the same matter identified in §103(E)(2)(b) does not appear to apply to the facts as given.