Opinion 12-12

January 26, 2012

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A town justice who, in his/her official capacity, consulted the town attorney about a subpoena the judge received is not disqualified from presiding when the town attorney appears in his/her court once the subpoena is no longer outstanding and the representation is concluded.

Rules:          22 NYCRR 100.2; 100.3(E)(1); 100.3(F); Joint Opinion 08-171/08-174; Opinions 09-138; 07-22; 02-60; 94-11 (Vol. XII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

A town justice who received a subpoena relating to his/her judicial position advises that he/she consulted the town attorney for advice about responding to the subpoena. The judge further advises that the subpoena is no longer outstanding, and the representation is concluded. The judge states that a town official has “directed” the judge to disqualify him/herself from all cases involving the town and has further “directed” the inquirer’s co-judge “to assume control of any and all cases involving the town that are in [the inquirer’s] court.” The judge asks whether disqualification is ethically required under the circumstances presented.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must disqualify him/herself from a proceeding where the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). Subject to certain exceptions not applicable to the present inquiry, such disqualification is subject to remittal (see 22 NYCRR 100.3[F]) unless a party is unrepresented (see Opinion 09-138).

When an attorney represents a judge on a personal matter, the judge is disqualified from presiding over matters in which that attorney appears, both during the course of the representation and for a period of two years after the conclusion of the representation (see Joint Opinion 08-171/08-174). However, if the judge is willing to preside and believes he/she can be fair and impartial, and all parties are represented by counsel, the disqualification is subject to remittal after full disclosure by the judge of the fact and the nature of the representation (see id.).

By contrast, when an attorney represents a judge in the judge’s official capacity, the judge is disqualified from presiding over matters in which that attorney appears, only during the course of the representation. Once the matter is concluded, as long as the judge believes he/she can be fair and impartial, the judge may preside over matters in which the attorney appears (see Opinions 07-22, 94-11 [Vol. XII]).

Therefore, as the judge in the present inquiry indicates that his/her consultation with the town attorney in his/her official capacity is concluded, the judge is not required to disqualify him/herself when the town attorney appears in the judge’s court. Nevertheless, it remains a “discretionary decision within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). The fact that a town official has requested, or even demanded, the judge’s disqualification does not in any way affect the judge’s discretion (see id.; 22 NYCRR 100.2 [a judge shall uphold the integrity and independence of the judiciary]; cf. Opinion 02-60 [advising that the justice court’s official stationery should not include the town supervisor’s name in order to avoid the erroneous implication that the judge and the court are subject to oversight by the town supervisor]).

Thus, now that the representation has concluded, if the inquiring judge feels he/she can be fair and impartial, the judge need not disqualify him/herself when the town attorney appears in his/her courtroom.