Opinion 06-110

September 7, 2006

NOTE: This opinion has been modified by Joint Opinion 07-105/07-119 to the extent it is inconsistent or silent on the topic of recusal.

Digest:                   If a judge believes he/she can be impartial, the judge may preside over matters in which (i) an attorney who commenced a suit against the judge in the judge’s capacity as a county official, before assuming judicial office and (ii) the judges’s law clerk was involved as an Assistant District Attorney. The judge should, however, disclose the law clerk’s involvement with those cases, insulate him/her from any involvement and recuse if any party so requests.

Rules:                    22 NYCRR 100.3(E)(1); Opinions 02-112; 99-91 (Vol. XVIII); 99-48 (Vol. XVII); 98-158 (Vol. XVII); 98-114 (Vol. XVII).

Opinion:

         A judge asks two separate questions.

         1) An attorney appearing before the judge sued the judge in his/her capacity as a county official before assuming judicial office. The judge asks whether disqualification is now required in cases involving the attorney who commenced the previous action.

         2) The judge’s law clerk previously served as an Assistant District Attorney handling cases assigned to the judge in that role. To what extent may the judge preside over these matters.

         As to the first question, the fact that an attorney commenced a suit against the judge in the judge’s capacity as a county official, before the judge assumed judicial office, does not require that the judge disqualify him/herself in proceedings in which that attorney appears, provided the judge believes that he/she can be impartial. 22 NYCRR 100.3(E)(1); Opinions 98-158 (Vol. XVII); 98-114 (Vol. XVII).

         In response to the second question, the judge need not disqualify him/herself in matters in which the judge’s law clerk was involved as an Assistant District Attorney, provided the judge believes that he/she can be impartial. The judge should, however, disclose the law clerk’s past involvement with those cases as an Assistant District Attorney, insulate the law clerk from those cases, and exercise recusal if any party in the proceeding so requests. 22 NYCRR 100.3(E)(1); Opinions 02-112; 99-91 (Vol. XVIII); 99-48 (Vol. XVII).