Opinion 09-47(B)

March 12, 2009

Digest:         A judge who is a named defendant in a lawsuit where the cause of action is directed at the judge in his/her institutional capacity need not disqualify him/herself in an unrelated case where the attorney who commenced the lawsuit appears, unless the judge cannot be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinion 07-25; 01-24 (Vol. XIX); 95-38 (Vol. XIII); 92-75 (Vol. IX).

Opinion:

         A recently elected town justice asks whether he/she must disqualify him/herself when an attorney who commenced a lawsuit against the town before the judge took office appears in the judge’s court. The justice advises that the attorney added the last newly elected justice to the lawsuit within the first few months after he/she took office, and the inquiring justice anticipates that he/she will be added to the lawsuit as well. He/she further states that the municipality’s attorney previously advised the other judges in the court to recuse themselves from all cases involving the attorney and wants him/her to do so as well in the interest of uniformity among the judges in the court. According to the judge, the municipal attorney seeks to pressure the attorney to dismiss the judges from the lawsuit, as he/she has concluded (and the judge agrees) that there is “no legally cognizable theory” of liability against them.

         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 in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).  

         The Committee previously has advised that where a judge is named individually as a defendant in a lawsuit, but the causes of action are directed at the judge’s institutional role, the judge need not disqualify him/herself when the attorney who commenced the lawsuit appears in the judge’s court in unrelated cases unless the judge cannot be impartial (see Opinion 01-24 [Vol. XIX]; see also Opinion 95-38 [Vol. XIII] [part-time judge may continue to preside in cases prosecuted by part-time assistant district attorney associated with a law firm that may be suing judge civilly as a stakeholder, but the judge has no personal interest in the litigation]).

         In the present inquiry, although the lawsuit seeks money damages against the town justices, they are nonetheless being sued solely in their official capacities. As the inquiring judge indicates that he/she feels no personal interest in the outcome of the lawsuit and, assuming he/she can be fair and impartial, it would be improper for the judge to disqualify him/herself solely for the strategic reason given by the town attorney in an unrelated case where the attorney who commenced the lawsuit appears (see Opinions 07-25; 92-75 [Vol. IX]). Therefore, as long as the inquiring judge has no personal interest in the outcome of the lawsuit and does not question his/her ability to be fair and impartial, the judge may hear unrelated matters in which the attorney who commenced the lawsuit against the judge’s town appears.