Opinion 09-139

June 3 - 4, 2009

Digest:         A city court judge who formerly served as corporation counsel for the same city where he/she presides must disqualify him/herself in any case involving the corporation counsel’s office that arose while the judge served as corporation counsel. However, because the corporation counsel’s office did not prosecute vehicle and traffic matters, the judge need not disqualify him/herself when a police officer from the same municipality where the judge presides appears to prosecute a vehicle and traffic matter, unless the judge cannot be impartial or the corporation counsel’s office litigated a case involving the particular officer while the judge served as corporation counsel.

Rule:            22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i);100.3 (F); Opinion 07-30; 07-23; 99-11 (XVII); 97-08 (Vol. XV).

Opinion:

         Before assuming the bench, the inquiring judge served as corporation counsel for the same municipality where the judge presides. The judge advises that he/she will disqualify him/herself from any matters that arose before he/she assumed the bench where the corporation counsel’s office appears as the prosecutor. The judge further advises that the corporation counsel’s office did not prosecute vehicle and traffic matters. Rather, the municipality's police officers prosecute their own traffic cases. Therefore, the judge asks whether he/she also must disqualify him/herself when a police officer from the municipality appears to prosecute a vehicle and traffic matter.

         A judge must avoid impropriety and its appearance in all the judge's activities (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any case where the judge's impartiality might reasonably be questioned, including where the judge knows he/she served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][1][b][i]). Remittal of disqualification, otherwise often available, is specifically prohibited when a judge must disqualify him/herself for this reason (see 22 NYCRR 100.3 [F]).

         The Committee previously has advised that a judge who exercised supervisory authority in a government law office or agency prior to assuming the bench must disqualify him/herself in cases that were pending while the judge served in such capacity when those cases come before him/her (see Opinions 07-30 [judge must disqualify him/herself in any matter in which judge participated in any way, personally or in a supervisory capacity, while serving as an Assistant Corporation Counsel prior to becoming a judge]; 07-23 [depending on degree of authority judge exercised while serving in several senior level positions with New York State Executive Branch agencies, judge may be required to exercise recusal in cases involving matters pending when judge served in such agencies]; 99-11 [Vol. XVII] [judge who formerly was a high-ranking deputy county attorney should not preside over cases involving the county or its departments or agencies, and pending when the judge was employed by the county]; 97-08 [Vol. XV] [judge who formerly served as deputy chief of branch office of Tort Division of Corporation counsel’s office, with general supervisory authority over tort cases against municipality that had been brought in county where judge now sits, may not preside over any tort cases that were pending in county office at the time]). Accordingly, the judge in the present inquiry also must disqualify him/herself in any case that was pending in the corporation counsel’s office while he/she served as corporation counsel that comes before him/her (see 22 NYCRR 100.3[E][1][b][i]). Disqualification in these cases is not subject to remittal (see 22 NYCRR 100.4[F]).

         However, because the inquiring judge advises that the corporation counsel’s office did not prosecute vehicle and traffic matters, the judge need not disqualify him/herself when a police officer from the same municipality where the judge presides appears to prosecute a vehicle and traffic matter, unless he/she cannot be impartial (see 22 NYCRR 100.3[E][1]); or where the corporation counsel’s office had litigated a case involving the particular officer during the judge's tenure as corporation counsel (see 22 NYCRR 100.2; Opinion 07-23). The latter disqualification from that officer’s other cases is required for a two year period after the judge assumed judicial office.