Opinion 07-212

January 31, 2008

Digest:         A part-time lawyer-justice who represents a client in a civil lawsuit against a defendant who serves as a law enforcement officer in the town encompassing the village where the judge presides should exercise recusal, subject to remittal, when the defendant law enforcement officer is involved in a case that comes before the judge, but need not exercise recusal when the defendant law enforcement officer’s employer is involved in a case that comes before the judge.

Rules:          22 NYCRR 100.3(E)(1); 100.3(F); Opinions 05-30; 04-84; 99-78 (Vol. XVIII).

Opinion:

         A part-time village judge who is permitted to practice law represents a client in a civil lawsuit that the judge commenced before he/she assumed the bench. The defendant in the civil lawsuit is a law enforcement officer for the town that encompasses the village where the judge presides, and previously has been involved in cases that have come before the judge. The civil lawsuit involves the defendant in his/her personal capacity and not as a law enforcement officer.

         The inquirer, in his/her capacity as private counsel, has advised the defendant’s counsel and the defendant’s law enforcement supervisor that the defendant has threatened the plaintiff in the civil lawsuit and has engaged in other acts of ongoing intimidation against the plaintiff. As a result, the judge indicates that the plaintiff in the civil lawsuit filed a formal disciplinary complaint against the defendant with the defendant’s employer. The judge thereafter contacted the Police Chief and gave directions to his/her court clerk to ensure that cases involving the defendant law enforcement officer do not come before him/her. Nevertheless, according to the judge, Counsel for the Police Benevolent Association has demanded that he/she withdraw from representing the plaintiff in the civil suit. The judge asks how he/she should proceed.

         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 (see 22 NYCRR 100.3[E][1]); Opinions 04-84; 99-78 (Vol. XVIII). It is the Committee’s view that the inquiring judge may, but need not, exercise recusal from cases involving the defendant law enforcement officer’s employer. If, however, the defendant law enforcement officer is involved in a case in which the judge presides, the Committee believes the judge’s impartiality might reasonably questioned and the judge should disqualify him/herself (see 22 NYCRR 100.3[E][1]). Such disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]).

         The Committee takes no position as to whether the inquiring judge must discontinue his/her legal representation of the plaintiff in the civil suit. That question is governed by the Code of Professional Responsibility, which this Committee is not authorized to construe (see Opinion 05-30). Nor does the Committee take any position concerning the steps the inquiring judge took to ensure that cases involving the defendant/law enforcement officer do not come before him/her.