Opinion 02-124

December 5, 2002

Digest:         A judge who was recently represented in a legal matter by an attorney who also is a part-time public defender must exercise recusal should the attorney appear in the judge’s court within two years after the representation was concluded. Thereafter, if the judge feels that he or she can be impartial, the judge need not exercise recusal except that if, after disclosure of the relationship, a party makes a non-frivolous objection, the judge should disqualify himself or herself. The judge need not exercise recusal, however, when other members of the public defender’s office appear.

Rule:            22 NYCRR 100.3(E)(1); Opinions 92-5 ( Vol. IX); 97-135 (Vol. XVI); 98-14 (Vol. XVI); 99-67 (Vol. XVIII).

Opinion:

         A judge who was recently represented in a legal matter by an attorney who also is a part-time public defender, asks whether it is ethically permissible to preside over cases in which other members of the public defender’s office appear. The judge indicates that the legal matter is concluded and that the attorney who represented the judge does not appear in the judge’s court.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires a judge to disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned 22 NYCRR 100.3(E)(1). This Committee has previously advised that when an attorney who, in the past, had represented a judge appears in the judge’s court within two years after the representation was concluded, the judge should exercise recusal. Thereafter, the judge may preside if the judge feels that he or she can be impartial, except that if, after disclosure of the relationship, a party raises a non-frivolous objection, the judge should disqualify himself or herself. Opinion 92-5 ( Vol. IX); 99-67 (Vol. XVIII). The judge need not, however, exercise recusal when other members of the public defender’s office appear. Opinion 97-135 (Vol. XVI); see also Opinion 98-14 (Vol. XVI) (A judge who is being represented by the Attorney General of New York in a Federal District Court action must recuse in cases in which the attorney(s) handling that matter appear before the judge, but need not recuse in cases where the representation is by other assistant attorneys general.)