Opinion 10-135

October 28, 2010

Digest:         If a judge believes that he/she can be impartial, the judge need not disqualify him/herself where (1) an attorney appearing in the judge’s court formerly was the judge’s co-judge in a different court; (2) an attorney appearing in the judge’s court was the town attorney at the same time the judge was town justice for the same town; (3) the judge learns the identity of campaign donors from a plaintiff’s motion papers.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.5(A)(5); Opinion 08-214; 08-98; 03-64; 04-106; 02-06; 94-14 (Vol. XII); 93-40 (Vol. XI); 91-57 (Vol. VII).

Opinion: 

         A full-time judge advises that a self-represented plaintiff filed a motion asking the judge to recuse him/herself from a case that is pending in the judge’s court. The plaintiff states that two attorneys with the law firm representing the defendant were the judge’s colleagues when the judge served as a town justice. One partner was the judge’s co-justice and the other was the town attorney for the same town where the judge presided. The plaintiff further states that two partners in the same firm, as well as a partner’s spouse, contributed to the inquiring judge’s election campaign and that the inquiring judge contributed to his/her former co-justice’s re-election campaign. The inquiring judge indicates that he/she can “serve fairly and impartially,” but asks whether he/she must grant the plaintiff’s motion to recuse.

         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]). In particular, a judge shall not allow family, social, political or other relationships to influence how the judge performs his decision-making role or exercises his/her judgment (see 22 NYCRR 100.2[B]). Further, 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 Committee previously has advised that former trial level judges may appear in the court where they previously presided (see Opinion 91-57 [Vol. VII]). In fact, the Committee has advised that there is no time restriction that prohibits a former judge from immediately practicing law even in the court from which he/she retired (see Opinion 08-214). In addition, a judge may preside in cases where a former judge of the same court appears or where a former Hearing Examiner of the same court appears (see Opinion 08-98; 94-14 [Vol. XII]). However, the judge must determine whether his/her former relationship with the attorney would create an appearance of impropriety (see Opinion 08-98) or might influence his/her conduct or judgment (see Opinion 94-14 [Vol. XII]). Inasmuch as the inquiring judge says he/she can “serve fairly and impartially,” recusal is not required when an attorney appearing before the judge was formerly his/her co-town justice.

         Nor must the inquiring judge disqualify him/herself because both the judge and the attorney appearing in the judge’s court served the same town at the same time; the judge as town justice and the attorney as town attorney. The Committee previously has advised that a town justice may preside over a criminal case in which the defense attorney concurrently serves as town attorney for the same town where the judge presides (see Opinion 93-40 [Vol. XI]). If the town attorney could have appeared before the inquiring judge when he/she was presiding as town justice, the inquiring judge is not required to disqualify him/herself now when both the judge and the attorney are no longer associated with the town.

         With respect to campaign contributions, a candidate for judicial office is prohibited from personally soliciting or accepting campaign contributions (see 22 NYCRR 100.5[A][5]) and should be shielded from knowing the identity of contributors (see Opinion 02-06). Nevertheless, a judge running for re-election need not disqualify him/herself solely because an attorney appearing in the judge’s court attended a campaign fund-raiser for the judge (see Opinion 04-106); because the name of an attorney appearing in the judge’s court is included in a list of the judge’s supporters (see Opinion 03-64); or where the judge learns that a lawyer contributed to the judge’s campaign by virtue of a newspaper report of public filings of contributions (see Opinion 04-106).

         Similarly, the inquiring judge also need not disqualify him/herself solely because the attorneys appearing in the judge’s court were contributors to the judge’s campaign, particularly where the party seeking the judge’s disqualification and recusal, by virtue of including the names of the contributors in motion papers, may very well have caused the judge to know that the attorneys contributed to his/her campaign.