Opinion 12-138

September 13, 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 part-time judge who is knowledgeable about commercial truck driving, because of the judge’s education, experience, employment, and credentials as a commercial truck driver and instructor, may accept employment as an expert witness on the subject of commercial truck driving in a Supreme Court case, provided that the party and/or attorney who retains the judge does not regularly appear before the judge. The judge must disqualify him/herself whenever the party or attorney appears in the judge’s court, during the course of the employment and for two years after his/her services conclude and all fees are paid.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); 100.4(D)(1)(a)-(c); 100.6(B)(4); Opinions 12-32; 09-138; 99-80 (Vol. XVIII); 95-163 (Vol. XIV).

Opinion:

         A part-time town or village justice, who is also presently employed as a commercial truck driver and instructor, asks whether he/she may serve as a testifying expert witness for a party in a Supreme Court case. The inquiring judge states that his/her expert testimony would relate to commercial truck driving.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A part-time judge may accept private employment, provided such employment is not incompatible with judicial office and does not conflict with the judge’s judicial duties (see 22 NYCRR 100.6[B][4]). However, a judge must not engage in financial or business dealings that (a) may reasonably be perceived to exploit his/her judicial position; (b) involve the judge with any business, organization or activity that ordinarily will come before the judge; or (c) involve the judge in frequent or continuing business relationships with persons likely to come before the judge’s court (see 22 NYCRR 100.4[D][1][a]-[c]). And, a judge must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has advised that, subject to certain limitations, a part-time judge may offer his/her services as “a breathalyzer expert for attorneys in felony and misdemeanor DWI cases” (Opinion 95-163 [Vol. XIV]); and may operate a business as a certified forensic science expert (see Opinion 12-32). In Opinion 12-32, the Committee emphasized that a judge must not perform such services in any case within the jurisdiction of his/her court (see also Opinion 99-80 [Vol. XVIII]) and must not undertake assignments for agencies that frequently appear in his/her court (see Opinion 12-32; see also 22 NYCRR 100.4[D][1][c] [judge must not engage in business dealings that involve the judge in frequent or continuing business relationships with persons likely to come before the judge’s court]).

         Here, the inquiring judge states that he/she would be retained to provide expert testimony in Supreme Court on the subject of commercial truck driving. Such employment, in a court of substantially different jurisdiction from the inquiring judge’s court, is permissible, provided that neither the party nor the attorney who retains the judge regularly appears before the judge (see generally Opinion 12-32; 22 NYCRR 100.4[D][1][a]-[c]).

          However, the judge must disqualify him/herself whenever the party or his/her attorney, for whom the judge is serving as an expert witness, appears in the judge’s court. This obligation continues for two years after any such services conclude and all fees are paid (see Opinion 12-32).¹

         Finally, if the inquiring judge’s outside employment as a testifying witness results in such frequent disqualification that it interferes with the proper performance of the judge’s judicial duties, he/she should consider either resigning from judicial office or ceasing the private employment (see generally Opinions 12-32; 99-80 [Vol. XVIII]; 22 NYCRR 100.6[B][4]).

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     ¹ The judge’s disqualification is subject to remittal, unless a party to the proceeding is appearing without legal representation (see generally 22 NYCRR 100.3[F]; Opinion 09-138 [describing the remittal process]).