Opinion: 04-36

March 11, 2004

Digest:         A full-time city court judge must disqualify him/herself in any proceedings involving the newly appointed city attorney for a period of two years after the sale of the judge’s law practice to that attorney was fully completed, but such disqualification is subject to remittal. Following the two year period, disclosure should be made for a reasonable period of time.

Rule:            22 NYCRR 100.3(E)(1); 100.3(F).

Opinion:

         A full-time city court judge inquires as to the propriety of allowing the newly appointed city attorney to appear before the judge in view of the fact that the judge’s law practice was sold to that attorney a year before the appointment.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires that a judge disqualify him/herself in any proceeding “in which the judge’s impartiality might reasonably be questioned.” In the instant circumstances, the judge’s sale of the law practice, along with the remaining client files, to the newly appointed city attorney may call into question the judge’s impartiality when that attorney appears before the judge. The judge should therefore disqualify him/herself in any proceeding in which the city attorney may appear for a period of two years following the date the sale was fully completed and the last payment was made. Thereafter, disclosure should be made to all parties for a reasonable period of time.

         However, under Section 100.3(F) the judge may disclose on the record the basis of the judge’s disqualification. If, after consultation in the absence of the judge, the parties and the attorneys, on the record or in a writing “all agree that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate, the judge may participate in the proceeding.” 22 NYCRR 100.3(F).