Opinion 18-172

December 11, 2018

Digest:         A part-time judge who previously served as a prosecutor with very limited supervisory responsibilities: (1) must not preside in criminal cases commenced during his/her tenure, if he/she had any involvement either directly or in a supervisory capacity; (2) may otherwise preside in criminal cases prosecuted by his/her former colleagues, provided the judge had no involvement in the matter and can be fair and impartial; and (3) may enter private practice subject to certain restrictions.

Rules:          Judiciary Law §§ 14; 16; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(I); 100.3(F); 100.6(B)(1)-(5); Opinions 16-143;15-211; 14-10; 14-07; 12-173; 10-73/10-100/10-167; 09-06; 07-30; 07-23; 99-11; 97-08.

Opinion: 

         The inquirer will soon resign his/her position as Chief Assistant District Attorney and assume a part-time judgeship. He/she requests guidance about his/her disqualification obligations and possible outside employment as a private attorney.

1. Disqualification Based on Prior Employment

         The District Attorney’s office in question employs fewer than ten attorneys. The Chief ADA is responsible for scheduling coverage in county court, oversight of the child advocacy center, and supervising administrative staff, but has no supervisory responsibilities with respect to cases in the town and city courts. Instead, the DA assigns the Chief ADA and other ADAs to cover specific town or city courts, and each of them reports directly to the DA on such matters. In essence, the DA exercises exclusive supervisory authority over all ADAs, including the Chief ADA, and makes the final determinations on the office plea policy; the Chief ADA performs supervisory tasks only in the DA’s absence (such as vacations). The judge was never assigned to the court in which he/she will preside, and anticipates his/her judicial caseload will involve small claims matters, landlord-tenant cases, and after-hours arraignments. The judge asks if he/she may preside in criminal cases, including those where the prosecutor is a former colleague.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself in specifically enumerated circumstances as required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge must disqualify him/herself when the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][I]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The scope of a judge’s disqualification obligations due to his/her prior employment in a government law office are determined by the degree of authority he/she exercised there (see Opinions 15-211; 07-23). Ordinarily, a former ADA is “only barred from adjudicating ‘cases indicted, or begun by an arrest, while the judge was still a member of the district attorney’s staff, ... if the judge in any way participated personally in the cases’” (see Opinions 14-10 n 3 [emphasis altered]; 99-11). Similarly, a former assistant corporation counsel who becomes a judge must disqualify him/herself “in any matter in which the judge participated, in any way, personally or in a supervisory capacity,” during his/her tenure (Opinion 07-30 [emphasis added]). Thus, a judge who is a former ADA need not disqualify him/herself from all cases involving the DA’s office but is disqualified from any matter in which he/she participated in any way, including minimally, as a prosecutor or as a supervising attorney. Again, it does not matter whether a judge personally prosecuted the case or whether an ADA subject to the judge’s supervision prosecuted the case (see Opinion 14-07).

         Where the judge had a prominent, high-level position with wide supervisory authority, disqualification may be quite broad (see e.g. Opinion 14-07 [high-ranking supervisory position in the county attorney’s office]). For example, a judge who was formerly the elected DA may not preside over any cases that were pending during his/her tenure, as he/she was the attorney of record and deemed to be involved in all cases (see Opinion 14-10). Similarly, a judge who was formerly deputy chief of a branch office of the Tort Division of the Corporation Counsel's office, with “general supervisory authority over all pretrial motion and discovery practice” in all pending tort cases against the municipality, may not preside over any tort cases pending in the county office at the time (see Opinion 97-08).

         Here, although the title of Chief ADA ordinarily implies a high-level supervisory position, it appears the DA exercised exclusive supervisory authority over all ADAs and personally made all determinations on office plea policies. Critically, the judge apparently did not handle or supervise any cases in the court where he/she will preside. On these facts, we conclude the judge need not be treated as exercising general supervisory responsibilities in all cases during his/her tenure at the DA’s office.

         Accordingly, the judge must not preside in criminal cases commenced during his/her tenure, if he/she had any involvement in the matter either directly or in a supervisory capacity (see e.g. Opinion 07-30). Disqualification on this ground is not subject to remittal (see 22 NYCRR 100.3[E][1][b][I]; 100.3[F]). However, the judge may otherwise preside in criminal cases prosecuted by his/her former colleagues, provided the judge had no involvement in the matter and can be fair and impartial.

         Although we expect disqualification will be extremely infrequent, the judge should remain alert for any cases he/she may have supervised temporarily in the DA's absence.

2. Private Practice of Law

         The judge also asks if he/she may go into private practice as a sole practitioner.

         A part-time judge may practice law, subject to certain limitations (see 22 NYCRR 100.6[B][1]-[5]). For example, a part-time judge must not practice law in the court on which he/she serves (see 22 NYCRR 100.6[B][2]), or represent a client in any matter that originated in that court (see e.g. Opinion 12-173; Judiciary Law § 16). A part-time judge also must not practice law “in any other court in the county in which his or her court is located, before a judge who is permitted to practice law” (22 NYCRR 100.6[B][2]; see Opinions 16-143; 10-73/10-100/10-167). If the other court has some judges before whom the part-time lawyer/judge may appear and others before whom he/she may not appear, the judge may ask at the outset that the case be assigned to a full-time or non-lawyer judge before whom he/she may appear, as long as the request is made before the case has been assigned (see Opinion 09-06).

         We can, of course, only provide a very general response to such a broad question. Should the judge choose to open a law practice, he/she may seek additional guidance on more specific issues as they arise.