Opinion 07-176

October 18, 2007

Digest:         While a lawsuit by certain judges is pending against the Executive and Legislative branches, seeking salary increases for Judges, a non-party judge who has a direct financial interest in the outcome of the lawsuit need not recuse from matters in which an attorney from the Office of the Attorney General appears.

Rules:          22 NYCRR 100.3(E)(1); 100.3(E)(1)(c)-(d); Opinions 98-14 (Vol. XVI); 94-23 (Vol. XII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A state-paid judge asks if he/she must recuse from matters involving the Office of the Attorney General during the pendency of a lawsuit about judicial salary increases. The inquiring judge explains:

[S]ome of my colleagues have instituted a lawsuit against former Governor Pataki, the New York State Senate, and the New York Assembly citing the failure to grant pay raises. As a sitting judge, I have a direct financial interest in the outcome of the litigation.

The Attorney General of the State of New York ... [t]herefore ... represent[s] adversaries from whom I am seeking money in the form of salary.

Clearly, if this was a private matter, and I was having a dispute with my next door neighbor and he or she hired a law firm..., I would have to recuse myself [if that law firm appeared before me]. Would the same standard hold true for the Attorney General’s office?

The inquiring judge further notes that although the Attorney General’s office “has voiced confidence in my ability to be fair and impartial,” he/she is nonetheless “concerned about the appearance of impropriety.”

         The Rules Governing Judicial Conduct require a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]). The Committee notes, preliminarily, that the present inquiry does not concern a judge’s duty to recuse from a proceeding in which the judge has an economic or other interest that could be substantially affected by the proceeding (compare 22 NYCRR 100.3[E][1][c]-[d]). The issue of judicial salary increases is unrelated to such cases.

         In Opinion 94-23 (Vol. XII), this Committee concluded that a judge need not exercise recusal when an attorney who appears in the judge’s court is a member of a law firm that represents a board of judges in a lawsuit, where the judge is a member of the board, but not named individually as a party. The same rule applies here, where the inquiring judge is not a named party in the lawsuit involving judicial salaries.

         Moreover, this Committee has advised that the Attorney General’s representation of other branches of government is not to be analogized to representation of an individual by a law firm in a personal matter (see Opinion 98-14 [Vol. XVI]). The Attorney General’s representation of the other branches of government “is required by law...; and it cannot be said that there is a unity of interest among Assistant Attorneys General throughout the State as there presumably is among members of a private law firm, so as to require disqualification” (id.).

         Under the circumstances presented, the Committee concludes there is no appearance of impropriety and thus no need to recuse when an assistant attorney general appears before the judge unless the judge believes he/she cannot be fair and impartial in the matter, a determination that is solely within the judge’s conscience (see People v Moreno, 70 NY2d 403 [1987]).