Opinion 03-77

September 4, 2003

Digest:         A judge is not required to disqualify himself or herself in a case when a known supporter of the judge’s opponent in a re-election campaign appears as attorney, if the judge believes that he or she can be impartial.

Rules:          22 NYCRR 100.3(E)(1); 100.3(F); Opinions 92-82 (Vol. IX) and 00-78/00-80.

Opinion:

         A law firm distributed a letter to the public requesting financial and political support for a judge’s opponent in a re-election campaign. The judge asks if disqualification is mandatory when attorneys from the law firm appear before him or her and, if so, whether remittal of disqualification is possible.

         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) . In Opinions 92-82 (Vol. IX) and 00-78/00-80, this Committee concluded that a judge may preside where the judge’s political opponent appears before the judge unless the judge doubts his or her ability to be impartial. Similarly, if a judge believes that he or she can be impartial, disqualification is not required when a known supporter of the judge’s opponent in a re-election campaign appears before the judge. If the judge does not exercise recusal in the case, the judge should disclose on the record that he or she is aware of the letter, but has determined that he or she can be impartial.

         Under certain circumstances, a judge’s disqualification is subject to remittal if the parties who have appeared and their attorneys, without the judge’s participation, agree that the judge may continue to preside in the case and the judge feels that he or she can be impartial. 22 NYCRR 100.3(F). Since, in this instance, the grounds asserted do not constitute a sufficient basis for a claim of disqualification, the occasion for remittal does not arise. But, of course, if the judge concludes that he or she could not be impartial recusal should be exercised.