Opinion 03-40

April 15, 2003

Digest:         A part-time lawyer-judge need not exercise recusal when the town attorney’s law partners appear in the court.

Rule:            22 NYCRR 100.2; 100.3(E)(1); Opinion 92-16(Vol. IX).

Opinion:

         Two part-time lawyer-town justices ask whether they must exercise recusal when the town attorney’s law partners appear in their court.

         A judge must avoid even the appearance of impropriety (22 NYCRR 100.2) and must disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). The question posed is whether the practice of law by the town attorney’s law partners in the town court gives rise to such a conclusion. In Opinion 92-16 (Vol. IX), this Committee concluded that there is no per se ethical restriction on the partners or associates of the town attorney representing clients before a part-time judge who also is an attorney. In the absence of any other factor that might call for disqualification the same holds true in the present inquiry as well, provided, of course, that the justices believe they can be fair and impartial.