Opinion 23-157

December 14, 2023

Digest:  A part-time attorney judge need not disclose or disqualify in matters involving the sheriff’s office, merely because the judge’s law firm is representing first-degree relatives of the county sheriff in a personal legal matter.  

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(1)-(4); Opinions 21-143; 15-51; 09-19; 03-133.

Opinion:

          The spouse of the elected county sheriff has contacted the inquiring part-time attorney judge’s law firm to see if the firm is available to handle certain estate planning matters for the sheriff’s spouse’s parent.  The judge’s law partner plans to handle this matter for the firm, and would work with both the sheriff’s parent-in-law (as client) and the sheriff’s spouse (as agent for their parent).  Since deputy sheriffs sometimes appear in the judge’s court, the judge asks if disqualification or disclosure will be required in cases where the sheriff’s office appears as the arresting agency, if the judge’s firm undertakes the representation. 

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A part-time attorney judge may practice law, subject to limitations (see 22 NYCRR 100.6[B][1]-[4]), but his/her judicial duties nonetheless “take precedence over all the judge’s other activities” (see 22 NYCRR 100.3[A]).  A judge must disqualify in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). 

          Here, we note that the proposed representation does not involve representing any law enforcement officers or law enforcement interests (cf. Opinion 21-143 [discussing prior opinions]), but an estate planning matter for two of the sheriff’s first-degree relatives by marriage.  We conclude that it is permissible.

          Where a judge’s law firm is representing a police sergeant with supervisory responsibilities, we have required disqualification, both during the representation and for two years thereafter, in cases before the judge where the judge knows or learns that the sergeant is involved, whether directly or in a supervisory capacity (see Opinion 09-19, mod Opinion 15-51).  While the sheriff as head of the sheriff’s office “is ultimately responsible for the actions and conduct of [those] under his or her direction” (Opinion 03-133), the sheriff here is not the law firm’s client and nothing in the inquiry suggests that the sheriff will have any involvement whatsoever in the representation of his/her spouse’s parent. 

          On these facts, we conclude that the judge’s impartiality cannot “reasonably be questioned” in matters where the sheriff’s deputies appear (see 22 NYCRR 100.3[E][1]).  Accordingly, disclosure and disqualification are not mandated.