Opinion 02-66

June 7, 2002

Digest:         A part-time lawyer-judge should exercise recusal in a criminal case where the defendant is a distributee of an estate the judge represents.

Rules:          22 NYCRR 100.3(E)(1).

Opinion:

         A part-time judge, who is a lawyer, represents an estate that will be divided among the decedent’s children. One of the children is the defendant in a criminal case that has been pending in the judge’s court since shortly before the decedent’s death. With respect to the estate, the judge has been working with the executrix, who is the criminal defendant’s sister. The criminal defendant’s only involvement in the estate has been to execute a Waiver of Process/Consent to Probate. The judge asks whether he/she should exercise recusal in the criminal case.

         A judge must disqualify himself or herself in a proceeding if the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Under the facts presented, the judge’s impartiality in the criminal case might reasonably be questioned in view of the fact that the judge, in the judge’s private law practice, represents the estate and, at the same time, has on-going contact with a criminal defendant who ultimately will be a distributee of the estate. It is the Committee’s opinion, therefore, that the judge should exercise recusal in the criminal case.