Opinion 06-92

September 7, 2006

Digest:         (1) A part-time judge, who is also a court reporter, should disqualify him/herself in any cases pending before the judge, where one of the attorneys has employed the judge as a court reporter within the last two years, or where one of the attorneys involved in the matter is someone from whom the judge actively or recently sought work, or contemplates seeking work, as a court reporter. (2) The judge should not perform any services as a court reporter related to any case within the jurisdiction of the judge’s court. (3) If the judge becomes regularly employed in the classified service of the Unified Court System, the judge is required under 22 NYCRR 50.3 to seek permission to continue serving as a judge.

Rules:          22 NYCRR 50.3; 100.3(E)(1); 100.4(D)(1)(c); 100.6(B)(4); Opinions 99-80 (Vol. XVIII); 92-63 (Vol. IX).

Opinion:

         A part-time judge anticipates becoming a court reporter. The judge inquires regarding disqualification or other conflict issues which might arise should the judge serve as a court reporter in state-paid or Town and Village Courts in neighboring counties.

         In considering the question posed, we are guided by section 100.4(D)(1)(c) of the Rules Governing Judicial Conduct, which provides that a judge shall not engage in business dealings that “involve the judge in frequent transactions or continuing business relationships with those lawyers . . . likely to come before the court on which the judge serves.” 22 NYCRR 100.4(D)(1)(c). Appearances by attorneys with whom the judge is involved in a business relationship could cause the judge’s impartiality to be reasonably be questioned, and therefore, disqualification is required. 22 NYCRR 100.3(E)(1). Thus, the judge should disqualify him/herself in any cases pending before the judge where one of the attorneys employed the judge as a court reporter within the last two years. If the employment was more than two years ago, the judge can preside if the judge believes that he/she can remain impartial. In addition, the judge should disqualify him/herself if one of the attorneys involved in the matter is someone from whom the judge actively or recently sought work, or contemplates seeking work, as a reporter. Opinions 99-80 (Vol. XVIII); 92-63 (Vol. IX). The judge should not perform any services as a court reporter related to any case within the jurisdiction of the judge’s court. 22 NYCRR 100.6(B)(4); Opinion 99-80 (Vol. XVIII).

         Further, we note that the inquirer may wish to provide court reporting services in a state-paid court. Section 50.3 of the Rules of the Chief Judge provides, among other things, that an employee regularly employed in the classified service in the Unified Court System must obtain permission in order to serve in another governmental position, including the judiciary. Thus, if the inquirer enters the classified service of the Unified Court System, the judge must seek permission as described in section 50.3 in order to continue serving as a town judge. 22 NYCRR 50.3.