Opinion 24-135

September 12, 2024

Digest:  A part-time judge is disqualified, subject to remittal, in a case which has been restored to the judge’s calendar, where the defendant is a recent customer of the judge’s automotive/towing business.

Rules:   22 NYCRR 100.2; 100.2(A), (C); 100.3(E)(1); 100.3(E)(1)(c); 100.3(F); 100.4(D)(1)(a), (c); 100.6(B)(4); Opinions 22-127; 22-11; 21-22(A).

Opinion:

          A part-time judge’s automotive business was recently patronized by a former defendant whose driving while intoxicated case had previously been disposed of by the judge.  The business towed the defendant’s vehicle and replaced its motor.  The probation department subsequently filed a declaration of delinquency, and now the defendant’s case is back on the judge’s calendar.  The judge asks if he/she may preside.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must not lend the prestige of judicial office to advance the private interests of the judge or others, nor may a judge permit others to convey the impression that they are in a special position to influence him/her (see 22 NYCRR 100.2[C]).  A judge must disqualify in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including if the judge knows he/she has an economic interest in a party to the case or any other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]).  Unlike a full-time judge, a part-time judge generally may accept private employment, if it is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]).   For example, judges may not engage in financial or business dealings that may reasonably be perceived to exploit their judicial position or involve them in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before their court (see 22 NYCRR 100.4[D][1][a], [c]).

          Where a party litigant before the judge has a recent business transaction or relationship with the judge, we often require disqualification (see e.g. Opinions 22-127 [advising part-time judge who is chaplain in correctional facility must disqualify in matters involving inmate to whom judge rendered pastoral care]; 22-11 [concluding part-time judge who owns real estate agency must disqualify in matters involving real estate clients for two years]).  Disqualification on this ground may be subject to remittal under Section 100.3(F).  As set forth in our opinions, remittal is a multi-step process that requires full disclosure on the record of the basis for disqualification and the voluntary affirmative consent of the parties and (if represented) their counsel (see Opinion 21-22[A]).

          Here, we conclude that the inquiring judge is disqualified, subject to remittal, from presiding over the restored case of his/her recent automotive customer.