Must an administrative law judge recuse from a case involving a taxpayer the judge previously handled, or whose case was at the agency while the judge was a staff lawyer?

Plain-English summary

An administrative law judge in the Division of Tax Appeals had previously served as a staff attorney representing the Department of Taxation and Finance in proceedings before the same Division. The question was whether he could now hear cases involving taxpayers who had matters pending in the Division while he was a Department lawyer.

The committee applied Canon 3(C)(1) of the Code of Judicial Conduct, which requires a judge to disqualify himself when his impartiality might reasonably be questioned, including where he served as a lawyer in the matter in controversy. It explained that the committee has long construed the Code of Judicial Conduct to reach officers of administrative agencies performing quasi-judicial functions (citing N.Y. State 327, 365, 543), and that ALJs are subject to those provisions of the Code that bear directly on the integrity of their adjudicatory function. Given the Tax Law's stated purpose of fair and impartial resolution of controversies, Canon 3(C)(1) applied to these ALJs.

Applying it, the committee held the ALJ must recuse himself if he previously represented the Department as attorney of record, or was otherwise involved in the prosecution, in the same matter with the same taxpayer. It extended that to a different matter involving the same taxpayer, reasoning from People v. Corelli that the appearance of bias from prior involvement with the same party can damage public confidence even where the judge believes he can be impartial. For the harder case, where another agency lawyer (not the ALJ) handled the prior matter while the ALJ was a staff attorney, the committee relied on the Commentary to Canon 3(C)(1)(b): a government agency is not fully equated with a private law firm, so a former agency lawyer is not deemed associated with every other agency lawyer. There is no absolute bar in that situation, but the ALJ must still recuse if, under the general standard, his impartiality might reasonably be questioned, weighing factors such as time on the bench, the size of the legal office, and his supervisory role.

Currency note

This opinion was issued in 1991, under New York's former Code of Professional Responsibility and the former Code of Judicial Conduct. New York replaced the lawyer Code with the Rules of Professional Conduct in 2009 and has since revised its judicial-conduct rules. 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: Are administrative law judges bound by the Code of Judicial Conduct?

A: Yes, as to provisions affecting their adjudicatory integrity. The committee held that officers of agencies performing quasi-judicial functions, including these ALJs, are subject to provisions like Canon 3(C)(1) on disqualification.

Q: Must the ALJ recuse from a taxpayer he previously represented for the agency?

A: Yes. The committee held the ALJ must recuse if he previously represented the Department as attorney of record, or was otherwise involved in the prosecution, in the same or an unrelated matter involving that taxpayer.

Q: What if a different agency lawyer handled the prior matter?

A: There is no absolute bar. Because an agency is not equated with a private firm, a former agency lawyer is not deemed associated with all other agency lawyers; the ALJ must still recuse if his impartiality might reasonably be questioned.

Background and rules framework

The opinion applied Canon 3(C)(1) of the Code of Judicial Conduct (disqualification where impartiality might reasonably be questioned, including prior service as a lawyer in the matter), the parallel Rules of the Chief Administrator (22 NYCRR 100.3(c)(2)), and EC 8-8 of the lawyer Code. The closest Model Rule analogues are Model Code of Judicial Conduct Rule 2.11 (disqualification) and Rule 1.12 (former judge or adjudicative officer).

Citations and references

Rules of Professional Conduct:

• Model Code of Judicial Conduct Canon 3(C)(1) / Rule 2.11 (disqualification)
• MR 1.12 (former judge or adjudicative officer)
• NY EC 8-8; 22 NYCRR 100.3(c)(2)

Cases:

• People v. Corelli, 41 A.D.2d 939 (2d Dep't 1973): a judge disqualified from a case involving a defendant he had prosecuted on other charges

Other opinions cited:

• N.Y. State 327 (1974): agency adjudicators subject to the Code of Judicial Conduct
• N.Y. State 543 (1982): a hearing officer and firm barred from related private practice

See also

• NY State Bar Op. 632: A part-time judge before the town's zoning and planning boards
• NY State Bar Op. 634: A former government lawyer representing other agencies

Source

• Landing page: https://nysba.org/opinion-617/