Opinion 07-53

April 19, 2007

Note on terminology: This Opinion uses the term "town council" as a synonym for "town board."

Digest:         Where a town justice has reason to believe that an attorney appearing before him/her is appearing on behalf of another attorney who is a member of the town council which sets the town justice’s salary, he/she should inquire about the relationship and disqualify him/herself, subject to remittal, if the attorney now appearing in his/her court and the attorney/town councilperson do have such an arrangement.

Rules:          22 NYCRR 100.1; 100.2(A); 100.3(E)(1)(d)(iii); 100.3(F); Opinions 93-115 (Vol. XI); 91-63 (Vol. VII); 89-93 (Vol. IV); Joint Opinion 88-17(b) and 88-34 (Vol. II).

Opinion:

         A part-time town justice has reason to believe that an attorney, who is also a member of the town council, has accepted a retainer from a client who has a matter pending in the inquirer’s court. The attorney/town council member is not appearing in the case, however, but has arranged for another attorney to appear on his/her behalf. The town justice asks: (1) whether he/she must ask the attorney who appears about the nature of that attorney’s relationship, if any, with the attorney/town council member; and, (2) if a relationship exists, whether he/she must exercise recusal.

         The Rules Governing Judicial Conduct require a judge to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 22 NYCRR 100.1. That confidence is compromised where an attorney with an interest in the matter is also in a significant position to help decide the judge’s salary. 22 NYCRR 100.2(A), 100.3(E)(1)(d)(iii). Thus, in general, a judge has no responsibility to inquire into the professional relationships of attorneys who appear before him/her. In the present case, however, the judge has reason to believe that the attorney appearing in his/her court may have a financial arrangement with an attorney who is also a member of the town council that sets the judge’s salary. Therefore, the judge should inquire about this relationship, because the “relationship between the judge and the salary-setting attorney (who is also a town council member) is rightly perceived by the public to be” relatively close. Opinion 89-93 (Vol. IV); see also Joint Opinion 88-17(b) and 88-34 (Vol II).

         If the justice learns the attorney appearing and the attorney/town council member have a financial arrangement in the case, and the attorney/town councilperson also participates in setting the town justice’s salary, the town justice is disqualified. We believe that circumstance renders the proceeding one in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1)(d)(iii); Opinions 93-115 (Vol. XI) (“An appointed part-time judge is disqualified from presiding over a case in which one of the parties or an attorney for one of the parties is a member of the City Council only if the City Council participates in setting the judge's salary.”); 91-63 (Vol. VII) (“A part-time judge is disqualified from presiding over a case in which one attorney is also an elected village trustee who participates in setting the judge's salary.”); Joint Opinion 88-17(b) and 88-34 (Vol. II) (“A town justice need not disqualify himself or herself where the town is a party to litigation but should disqualify himself or herself, subject to a remittal of disqualification, where a town councilman or member of the town board who participates in setting the judge’s salary is a private litigant or attorney for a private litigant.”) Such disqualification is, however, subject to remittal. 22 NYCRR 100.3(F).