Opinion 21-20

January 28, 2020

Digest:         A judge may preside in a criminal case that arose during the judge’s tenure at the District Attorney’s office, where the matter was handled exclusively and personally by the District Attorney and the judge had no involvement with the file whatsoever.

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); Opinions 18-172; 15-211; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge asks if it is ethically permissible to preside in a case involving a defendant who was arrested and arraigned in a local court during the judge’s former tenure as Chief ADA. The judge says the matter was solely handled by the elected District Attorney. The judge had no involvement in the representation whatsoever, does not know the defendant, and is “wholly unfamiliar with the file.” The judge further explains the role of Chief ADA, in that office, did not involve general supervisory or policy-setting responsibilities. To the contrary, it appears the DA exercised exclusive supervisory authority over all ADAs and personally made all determinations on office policies.¹ The designation of Chief ADA, in effect, meant the judge would only act in that capacity on the very rare occasions when the DA was unavailable.

         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 is disqualified when they know they 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 their prior employment in a government law office is determined by the degree of authority they exercised there (see Opinion 15-211). Thus, an attorney with supervisory authority is generally deemed to be involved in all matters involving attorneys subject to their supervision. Here, however, although the title of Chief ADA implies a high-level supervisory position, the District Attorney’s office was structured much like that in Opinion 18-172, so that the judge’s actual supervisory responsibilities were extremely limited. We therefore conclude the judge need not be treated as exercising general supervisory responsibilities in all cases during their tenure at the DA’s office (see Opinion 18-172). Rather, the judge need only disqualify from matters in which the judge had some personal involvement - however minimal - either directly or as a supervisor (see Opinions 18-172; 15-211; 22 NYCRR 100.3[E][1][b][i]).

         As the matter described was handled exclusively and personally by the judge’s supervisor, the District Attorney, and the judge had no involvement with the file whatsoever, we conclude the judge may preside.

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¹ That is, the DA set office policy and assigned each ADA, including the judge, to prosecute matters in specified lower courts. Each ADA effectively reported directly to the District Attorney and independently prosecuted matters in the lower courts as assigned.