Opinion 07-122

September 6, 2007

Digest:         A judge presiding in a criminal case, where the defendant is an attorney who also practices before the judge, need not disqualify him/herself in those unrelated proceedings, so long as the judge can maintain his/her impartiality.

Rules:          22 NYCRR 100.3(E)(1); Opinions 07-24; 04-84; 91-73 (Vol. VII); People v. Moreno, 70 N.Y.2d 403 (1987).

Opinion:

         A judge is presiding in a criminal case where the defendant also is an attorney who regularly practices before the judge. The judge asks if, during the pendency of the criminal charges against the attorney, it is ethically permissible to preside in unrelated cases where the attorney represents a party.

         Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In this inquiry, the fact that an attorney is a defendant in one case and an advocate in another does not, in and of itself, present a reasonable basis for questioning the judge’s impartiality. 22 NYCRR 100.3(E)(1); see Opinions 04-84; 91-73 (Vol. VII). Recusal, therefore, is not mandatory, but is left to the judge’s discretion, based on his/her own personal conscience.

 People v. Moreno, 70 N.Y.2d 403 (1987); Opinion 07-24.

         A judge, therefore, may preside in cases where an attorney, who also is a criminal defendant in the judge’s court, appears to represent a party, so long as the judge believes he/she can remain impartial.