Opinion 08-204

December 4, 2008

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A part-time non-attorney judge who presides in two neighboring courts within the same county that also are presided over by part-time attorney judges who are permitted to practice law must disqualify him/herself from presiding when his/her co-judge from one court appears as a practicing attorney in the other court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.6(B)(2)-(3); Opinion 08-144; Joint Opinion 07-114/07-120.

Opinion:

         A part-time non-attorney judge presides in both a town court and an adjacent village court within the same county. His/her co-judge in each court is a part-time attorney-judge who is permitted to practice law. The non-attorney judge asks whether his/her co-judge in one court may appear and represent a client before him/her in the other court. For example, may the inquiring judge’s co-judge in the town court appear before him/her in the village court?

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Rules Governing Judicial Conduct prohibit a part-time judge from “practic[ing] law in the court on which the judge serves” (22 NYCRR 100.6[B][2]; Opinion 08-144), or “in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (22 NYCRR 100.6[B][2]). However, the Rules do not expressly preclude a part-time judge from practicing law in another court in his/her county, before a judge who is not an attorney (see id.). Nor do the Rules expressly prohibit a judge from permitting the practice of law in his or her court by a judge of a court in another town, village or city who is permitted to practice law (see 22 NYCRR 100.6[B][3]).

         Under the facts presented, the town and village courts in which the inquiring judge presides are not only within the same county but are in very close geographical proximity to one another. Thus, while in a technical sense the judges are in separate jurisdictions, in a practical sense, these courts and the justices who serve in both of them are likely to appear to the public as very closely interrelated. As a result, the inquiring judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), and he/she should disqualify him/herself when his/her co-judge from the other court appears. Such disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]) unless a party is self-represented (see Joint Opinion 07-114/07-120).

         Therefore, if the inquiring judge believes that he/she can be impartial and is willing to preside, he/she may disclose on the record the basis of his/her disqualification, to the parties who have appeared and not defaulted, and to their attorneys. If such parties and attorneys thereafter agree on the record, without the judge’s participation, that the judge should not be disqualified, the judge may continue to preside (see 22 NYCRR 100.3[F]). Absent a remittal, the judge may not continue to preside.