Digest: Provided that the judge believes that he or she can be impartial, disqualification is not required where (1) an attorney appearing before the judge had represented the judge's son ten years previous in a parking ticket matter; (2) an attorney appearing before the judge is "of counsel" to a law firm that had consulted the judge (who is a licensed private investigator) six years previous and had paid the judge $50 for such consultation.
 

Rule:  22 NYCRR 100.3(E)(1);
           Opinions 92-31 (Vol. IX );
           92-63 (Vol. IX); 93-61 (Vol. XI).
 
 

Opinion:

            A part-time town justice asks whether disqualification is required where an attorney currently appearing in the town justice's court had represented the judge's son ten years ago in a matter involving a parking ticket.

            The Committee previously has advised that disqualification is not required if more than two years have elapsed since an attorney's representation of a judge's child. The Committee further advised that the judge may sit, even if an objection is made, provided the judge believes that he or she can be impartial. Opinion 92-31 (Vol. IX). Similarly, in Opinion 93-61 (Vol. XI), the Committee advised that a judge need not disqualify himself or herself where an attorney currently appearing in the judge's court had represented the judge and the judge's spouse in a divorce proceeding that was terminated 11 years earlier. Nor did the judge have to disclose the prior representation, provided that the judge had no doubt that he or she could be impartial.

            In our opinion, in light of the lapse of time and the minor interest at stake in the earlier matter, the situation as presented is not one "in which the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1). Thus, so long as the inquiring justice believes that he or she can be impartial, disqualification is not required.

            The judge, who is a licensed private investigator, also asks whether disqualification is required where an attorney currently appearing in the town justice's court is "of counsel" to a law firm that had consulted the judge for investigatory services more than six years ago and had paid the judge a $50.00 fee.

            In Opinion 92-63 (Vol. IX), where the inquiring judge had also been a private investigator, the Committee advised that the judge should disqualify himself or herself if investigative services were rendered on behalf of an attorney within the two-year period prior to the attorney's appearance. Here, six years have elapsed; the attorney appearing is "of counsel" to the firm; the fee paid was minimal; and the judge has no recollection of the consultation. Under such circumstances, it can not be maintained that the instant proceeding is one in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). We therefore advise that disqualification is not required, provided, of course, that the judge believes he or she can be impartial.