Opinion 10-69

June 10, 2010

Digest:         A judge who is represented by the New York State Office of the Attorney General in a federal court case need not disqualify him/herself from an unrelated case in his/her court or disclose the representation where the Attorney General’s name appears in the caption of the unrelated case as “People by [Attorney General],” as long as the Attorney General is not directly or personally involved in the unrelated case and the assistant attorney general who is appearing in the judge’s court is not the same assistant attorney general who is currently representing the judge in federal court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 07-177; 07-176; 98-14

                   (Vol. XVI); 97-65 (Vol. XV); 90-197 (Vol. VII).

Opinion:

         A judge who is a defendant in a federal court case is represented by the New York State Office of the Attorney General. The judge asks whether he/she must exercise disqualification in unrelated cases where “the Attorney General is named in the caption and is apparently a party (e.g., People by [Attorney General]).”

         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]).

         The Committee previously has advised that a judge who is represented by the New York State Attorney General in one case is disqualified in unrelated cases where the assistant attorney general handling the judge’s case appears before him/her, but is not disqualified when other assistant attorneys general appear (see Opinions 07-177; 07-176; 98-14 [Vol. XVI]; 90-197 [Vol. VII]).

         The same principle applies here, as well, where the Attorney General’s name appears in the caption either “merely as a nominal, formally named party, not directly involved in the action” or in a strictly representative capacity (Opinion 97-65 [Vol. XV] [a judge who is being considered as a possible candidate for the office of Lieutenant Governor is not required to exercise disqualification in cases in which the Governor is merely a nominal, formally named party, not directly involved in the action, but should recuse in matters in which the Governor is directly or personally involved]).

         Therefore, where the Attorney General is not in fact directly or personally involved in the case, the assistant attorney general who is appearing is not the same assistant attorney general who is currently representing the judge in the federal court case, and the judge believes that he/she can be impartial, the judge need not disqualify him/herself or disclose the representation.