Opinion 07-23

February 22, 2007

Digest:         A judge who formerly served as an assistant district attorney and law clerk is disqualified in any case in which he/she was directly involved. Depending on the degree of authority the judge exercised while serving in several senior level positions with New York State Executive Branch agencies, the judge may be required to exercise recusal in cases involving matters pending when the judge served in such agencies. A judge is required to recuse in matters in which the judge was directly involved while serving in such agencies.

Rules:          22 NYCRR 100.2; 100.3(E)(1), (E)(1)(b)(i); Opinions 07-30; 07-10; 99-11 (Vol. XVII); 97-08 (Vol. XV); 96-139 (Vol. XV); 91-154 (Vol. VIII)

Opinion:

         A newly-appointed full-time judge has served in several senior level positions with New York State Executive Branch agencies and offices. The judge has also served as an assistant district attorney and as a law clerk. The judge asks about the extent to which he/she is disqualified due to such past employment.

         A judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities and must disqualify himself/herself from any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.2; 100.3(E)(1).

         Accordingly, as a former assistant district attorney, the inquiring judge is disqualified in any case where he/she was directly involved in the prosecution. Opinions 96-139 (Vol. XV); 91-154 (Vol. VIII). The same rule applies to any cases where the judge was directly involved as a law clerk.

         As for senior positions the judge has held with the New York State Executive Branch, the requirement of disqualification depends on the degree of authority the judge exercised in each position. For example, in Opinion 07-10, this Committee concluded that a judge who previously served as a high-ranking executive branch official should recuse from proceedings which encompass matters with which the judge had direct involvement, but not from any other proceedings involving the executive branch, provided he/she can remain impartial. Opinion 07-10. In Opinion 07-30, by contrast, this Committee determined that a judge must disqualify him/herself, and may not preside over any matter in which the judge participated in any way, in a personal or supervisory capacity, while serving as an assistant corporation counsel. Opinion 07-30. In Opinion 99-11 (Vol.. XVII), this Committee considered the extent to which a judge who formerly served as a high-ranking deputy county attorney should recuse in cases involving the county, its departments or agencies. We advised:

Here, in light of the judge's duties as a high-ranking deputy county attorney, it would be highly unlikely that the judge could clearly identify all matters involving various county agencies, in which the judge personally participated while serving in the County Attorney's office. Thus, to avoid the possibility of the judge presiding in such instances, we advise that the judge disqualify him/herself in any matter which was pending in the County Attorney's office while the judge was serving. 22 NYCRR 100.3(E)(1)(b)(i); Opinion 97-08 (Vol. XV).

         Similarly, in Opinion 97-08, the Committee advised that a judge who was formerly deputy chief of a branch office of the Tort Division of the Corporation Counsel's office, with general supervisory authority over tort cases against the municipality brought in the county where the judge now sits, may not preside over any tort cases pending in the county office at the time. Opinion 97-08 (Vol. XV).

         As the judge held several positions with the Executive Branch with varying responsibilities, he/she must be generally guided by these earlier ethics opinions. The Committee invites further inquiry should a future question arise in a case.