Opinion 20-159

October 29, 2020

Digest:         A judge is not disqualified when the assistant town attorney appears before the judge, even if the attorney obtains the party’s endorsement and becomes a candidate for non-judicial office on the judge’s slate.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.5(A)(1)(e); 100.5(A)(2)(iii); Opinions 13-97; 11-125; 11-76; 11-13; 00-78/00-80; 92-82; 89-87; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A town justice seeking re-election states that the assistant town attorney is seeking the same political party’s endorsement for a non-judicial elective position in the same town. The assistant town attorney currently appears in the town court on town ordinance cases and traffic tickets, both of which usually involve unrepresented litigants. The judge asks if it is permissible to preside in cases where the assistant town attorney appears, especially if the two of them are running on the same slate.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify in a case where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or where specifically required by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Where disqualification is not required under objective standards, the trial judge “is the sole arbiter of recusal,” and this “discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

         We note, initially, that a town justice may ordinarily preside in matters involving the town attorney or assistant town attorneys, even though they are fellow “employees” of the town (see e.g. Opinions 11-13 [town/village attorney appearing as a private attorney]; 89-87 [“the mere fact that an acting village justice and a village attorney both are ‘employees’ of the village does not give rise to a disqualifying relationship”]).

         Although we have not previously addressed a judge’s obligations with regard to an attorney who is running on the same slate, we have advised that a judge may preside “where the judge’s political opponent is an attorney in the case, unless the judge doubts his or her impartiality” (Opinion 92-82; accord e.g. Opinions 13-97; 11-76). Nor can a judge’s impartiality “reasonably be questioned” (22 NYCRR 100.3[E][1]) merely because the chief assistant district attorney who is the judge’s opponent in an upcoming judicial election appears before the judge as an attorney during the electoral campaign (see Opinion 00-78/00-80).

         Since a judge is not disqualified when the judge’s own electoral opponent appears before the judge as an attorney, we believe it is even less reasonable to question the judge’s impartiality in matters involving a fellow slate member. Certainly, a judge’s relationship with a fellow slate member is less likely to be perceived as adversarial or acrimonious than their relationship with a direct political opponent. Nor do we perceive any reasonable basis to question the judge’s impartiality, merely because the same political party has chosen to support both the judge and the assistant town attorney for election (cf. 22 NYCRR 100.5[A][1][e] [judicial candidate may not make endorsements]). While the members of the slate might be present together at political functions during the election season, as expressly permitted by Section 100.5(A)(2)(iii), in our view, the judge’s impartiality cannot “reasonably be questioned” under these circumstances (22 NYCRR 100.3[E][1]; Opinion 11-125 [neither disclosure nor disqualification required for acquaintance-level interactions “result[ing] from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc.”]). Accordingly, disqualification is not mandated when the assistant town attorney appears before the judge as an attorney, even if they are both running on the same slate, provided the judge can be fair and impartial. The decision to disclose or recuse is a purely discretionary one within the conscience of the court (see e.g. Opinions 00-78/00-80; 11-76).