Opinion 22-125

September 8, 2022

Digest:         Provided the court attorney-referee can be fair and impartial, the referee is not disqualified from a small claims case merely because (1) both parties were once colleagues of the referee during the referee’s former employment as an assistant district attorney and (2) the District Attorney’s office interviewed the referee as a fact witness in an unrelated criminal investigation regarding one party.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e); 100.6(A); Opinions 21-174; 19-39; 17-150; 17-75; 16-114; 15-69; 14-168; 09-172/10-31; 04-84; People v Moreno, 70 NY2d 403 (1987).

Opinion:

            The inquiring court attorney-referee was previously employed as an assistant district attorney (ADA). The referee has been assigned a small claims case involving a contract dispute between two former colleagues at the District Attorney’s (DA) office: one party was a member of the support staff, while the other was the referee’s supervisor. Coincidentally, the referee’s former supervisor has recently been criminally charged for acts allegedly committed during their employment, and the DA’s office interviewed the referee as a fact witness concerning certain allegations in that criminal case. However, the underlying facts in the small claims case occurred after the referee left the DA’s office and are entirely unrelated to the criminal case or to the parties’ employment at the DA’s office. It thus appears the referee has no extra-judicial knowledge of any facts relevant to the small claims case. The referee plans to disclose these connections to the parties in the small claims case, but asks if they must also request that the matter be reassigned.¹

            As relevant here, court attorney-referees must comply with the Rules Governing Judicial Conduct “in the performance of their judicial functions” (22 NYCRR 100.6[A]). Accordingly, they must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a referee is disqualified in a case where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including instances where they have “personal knowledge of disputed evidentiary facts” (22 NYCRR 100.3[E][1][a][ii]) or are “likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Where objective standards do not mandate disqualification, however, a judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

            We have advised that a lawyer’s prior employment in a government law office differs significantly from employment in a private law firm, in that it is unlikely to create any appearance of a financial or business relationship with their former public sector colleagues (see Opinions 17-150; 17-75 fn 1; 16-114). Here, the referee previously worked with both parties when they were all employed at the DA’s office. Provided the referee can be fair and impartial, we thus conclude the referee’s status as a former non-supervisory ADA does not, without more, disqualify them in matters involving their former colleagues at the District Attorney’s office, including their former supervisor and a former administrative assistant.

            Nor is the referee disqualified simply because one of the parties, the referee’s former supervisor, is being prosecuted on unrelated criminal charges arising from their employment at the DA’s office, and the referee has been interviewed as a potential fact witness. Indeed, we have advised that “a judge is not necessarily disqualified in one proceeding merely because he/she has been called as a witness in another proceeding concerning matters he/she personally observed as a judge” (Opinion 19-39; see Opinions 14-168; 09-172/10-31; 04-84). We likewise advised that, provided the judge can be fair and impartial in the underlying criminal case, a judge need not disqualify if the judge cooperates as a fact witness in a police investigation concerning a bench conference in which an active state trooper was identified solely as defense counsel’s “associate” (see Opinion 21-174).

            Here, as it appears that there is no connection between the facts and issues relevant to the small claims breach of contract case and those relevant to the criminal investigation of the former supervisor, we can see no impropriety in the referee’s presiding in the small claims case. Even if the referee has information relevant to the criminal investigation of their former supervisor, that information has no apparent connection to the small claims case before the referee. Nor, on these facts, is the referee likely to gain any extra-judicial knowledge of disputed evidentiary facts in the small claims case by participating in an interview with the DA’s office or even testifying in the criminal case.

            Accordingly, we conclude that, provided the referee can be fair and impartial in the small claims matter, the referee is not disqualified.

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¹ We understand that a “court attorney referee cannot relieve him/herself from an assignment” (see Opinion 15-69 fn 1 [citations omitted]).