Opinion 09-20

January 29, 2009

Digest:         A full-time city court judge whose co-judge is also an assistant county attorney need not disqualify him/herself in matters involving the County Attorney who employs his/her co-judge or when another assistant county attorney from the same County Attorney’s office appears in the judge’s court. However, the inquiring judge should disqualify him/herself in any proceeding where the County Attorney’s office appears if his/her co-judge was involved as an assistant county attorney.

Rules:          Judiciary Law § 471; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(3); Opinion 98-14 (Vol. XVI).

Opinion:

         A full-time judge advises that his/her part-time co-judge is also an assistant county attorney whose responsibilities include non-prosecutorial matters. The judge asks whether he/she must disqualify him/herself when the County Attorney or another assistant county attorney appears in the judge's 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 any proceeding where the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). A judge's law partners and associates are prohibited from practicing in the judge's court (see Judiciary Law §471), and a part-time judge must not permit his/her partners or associates to practice law in the court in which he/she is a judge (see 100.6[B][3]). However, there are no comparable provisions that apply to a judge's colleagues in a public law office such as the County Attorney's office.

         A judge and his/her partners and associates in a private law firm have a common financial interest in each case that the firm represents. However, that is not the case for attorneys who are colleagues in a public law office. Therefore, where a judge is represented by the Attorney General's office in a Federal District Court case, the judge must disqualify him/herself when an assistant attorney general involved in that case appears in the judge's court, but may preside when other assistant attorneys general who are not involved in the case appear in the judge’s court (see Opinion 98-14 [Vol. XVI]).

         Similarly, in the present inquiry, the judge need not disqualify him/herself in matters involving the County Attorney who employs his/her co-judge as an assistant county attorney or when another assistant county attorney from the same office appears in the judge's court. However, the inquiring judge should disqualify him/herself in any proceeding where the County Attorney’s office appears if his/her co-judge was involved as an assistant county attorney.