Opinion 05-96

October 27, 2005

Digest:         A judge may ask relevant questions to determine if a former court attorney’s current role representing clients in the judge’s court creates an appearance of impropriety.

Rules:          22 NYCRR 100.2(A); Opinion 91-105 (Vol. VIII).

Opinion:

         A judge asks several questions concerning the propriety of a former court attorney representing clients in cases that were pending in the court during his/her employment as a court attorney.

         This Committee is unaware of any specific rule governing the propriety of an attorney previously employed as a court attorney representing clients in cases that were pending in the court during such employment. The judge, however, must conduct himself or herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.2(A). In Opinion 91-105 (Vol. VIII), this Committee advised a judge who was concerned about a possible conflict of interest created by a public defender’s candidacy for district attorney that, “[T]here is no ethical objection to a judge’s inquiring as to any possible conflict in appointing the public defender as counsel and informing the defendant of the information thus obtained, and taking appropriate action if there is a conflict.” Similarly, in the present inquiry, the judge may ask such questions as are relevant in each case to determine if there is a conflict between the attorney’s current role representing clients before the court and the attorney’s former role as court attorney for the same court. The answers to any such questions will serve to inform the parties of the extent of the attorney’s actual involvement in a particular case as a court attorney and will allow the judge to evaluate whether the attorney’s continued involvement would create an appearance of impropriety.

         This opinion addresses only the role of the judge in relation to the execution of judicial duties. It does not address possible questions, if any, under the Code of Professional Responsibility that would govern the professional conduct of the attorney under these circumstances.