[1] Interestingly, the ABA’s equivalent rule likewise broadly permits consultation “with other judges” (Annotated Model Code of Judicial Conduct [2016] Rule 2.9[A][3]), but the commentary excludes consultation with “judges who have appellate jurisdiction over the matter” (Rule 2.9 comment [5]).
[2] As we have explained, “there is no per se requirement for disqualification of a judge based on the judge’s having learned facts about a matter in a judicial capacity. We have recognized that a judge, due to specialized learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 18-104 [internal citations, brackets, and quotation marks omitted]). Whether an appellate judge is disqualified, therefore, will depend on the particular circumstances.
