Opinion 14-120

September 4, 2014

Digest:         A village justice may preside in a criminal case where the defendant and the alleged victim are attorneys who practice in the village court, and the prosecutor is the town attorney for a neighboring town, provided the judge concludes he/she can be fair and impartial.

Rules:          Judiciary Law §14; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(I); 100.3(E)(1)(a)-(g); Opinions 14-62; 11-64; 09-239; 07-22; 92-49 (Vol. IX); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring village justice asks if he/she may preside in a criminal matter where the alleged victim is a prosecutor who appears occasionally before the judge, the defendant is an attorney who regularly appears in the judge’s court as an 18-B assigned counsel, and the prosecutor is the town attorney for a neighboring town.¹

         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]). Thus, 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]), or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[g]; Judiciary Law §14), including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][I]). Where, as here, disqualification is not mandated under the objective standards of those two questions, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

         The Committee has previously advised that, provided the judge concludes he/she can be fair and impartial, a judge may preside in a case where one of the parties “is also an attorney who regularly appears before the judge”(Opinion 14-62), and that judges may preside in actions commenced by a local attorney to collect fees where the attorney has “an active practice” in the judges’ court and thus “frequently appears before them” (Opinion 92-49 [Vol. IX]). Similarly, the Committee has advised that a judge will not need to disqualify him/herself when an attorney who regularly appears in the judge’s court has testified as a witness in a proceeding before the judge and the judge had to assess the attorney’s credibility in reaching a decision (see Opinion 09-239). The Committee sees no reason to apply a different rule here simply because several local attorneys are involved in the case.²

         The Committee has also advised that as long as a “town justice can remain impartial, he/she may preside when the town attorney appears as special prosecutor, even though the same town employs them both” (Opinion 07-22). Providing the inquiring village justice concludes that he/she can be fair and impartial, there is no basis for disqualification merely because the matter will be prosecuted by a town attorney from a neighboring town.

         Accordingly, the inquiring village justice may preside in a criminal case where the defendant and the alleged victim are attorneys who practice in the village court, and the prosecutor is the town attorney for a neighboring town, provided the judge concludes he/she can be fair and impartial (see Opinions 14-62; 09-239; 07-22; 92-49 [Vol. IX]).

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     ¹ The judge states the District Attorney delegated prosecution of the case to the town attorney because the alleged victim is an assistant district attorney.

     ² As the Committee has noted, provided that a judge believes he/she can, in fact, be fair and impartial, judges “can avoid an appearance of partiality or impropriety by treating the attorney in the same manner as they would treat any other litigant in their court” (Opinion 92-49 [Vol. IX]).