Opinion 21-05

January 28, 2021

Digest:     A judge must not preside in a criminal case that has been transferred to drug treatment court where the judge entered a single appearance as the prosecutor in the underlying criminal case.

Rules:       Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 19-82; 15-211; 14-10; 07-30.

Opinion:

         The inquiring judge is a former prosecutor. Before assuming the bench, the judge was the prosecutor on duty in justice court when a particular criminal case was called for arraignment. The case was adjourned so the defendant could retain counsel, and the inquirer had no further involvement with the matter as an attorney. That criminal case was subsequently transferred to the drug treatment court where the inquiring judge now presides. The judge asks if they may preside in the matter.

         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 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]).

         Of particular note, disqualification is required if “the judge knows that [i] the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]). Disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[F]). Thus, a former prosecutor is “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’” (Opinion 14-10 fn 3 [citations omitted]). Similarly, a former assistant corporation counsel who becomes a judge is disqualified “in any matter in which the judge participated, in any way, personally or in a supervisory capacity,” as an attorney (Opinion 07-30 [emphasis added]).

         The same principles apply here. The inquiring judge is disqualified from any case in which they participated even minimally. Disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[E][1][b][i]; 100.3[F]; Opinion 15-211; cf. Opinion 19-82 [law clerk must be permanently insulated from case in which they had, as an attorney, provided coverage for a colleague at a single court appearance]). The judge must not preside in this criminal case that has been transferred to drug treatment court, as the judge knows they were the prosecutor on duty and appeared at an earlier stage of the defendant’s case.