Opinion 24-40

March 14, 2024

Digest:  (1) A judge who is a former assistant district attorney need not disqualify from unrelated civil matters involving individuals who were investigated or prosecuted by the judge or his/her subordinates during the judge’s tenure.

            (2) A judge’s impartiality cannot reasonably be questioned in a matter merely because one of the litigants is an attorney the judge knows professionally from practicing law and engaging in bar association activities over the course of many years.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(4); 100.3(E)(1); 100.3(E)(1)(b)(i); Opinions 21-04; 14-10; 14-07; 11-125; 07-126; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring judge, who is new to the bench, asks about potential conflicts due to his/her prior employment as a prosecutor and his/her long-time involvement in the legal community.

          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]).  Therefore, a judge must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must “perform judicial duties without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]).  A judge must disqualify in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14).  For example, a judge is disqualified, without the possibility of remittal, when “the judge knows that ... the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]).

Former Defendants

          The judge served for many years as an assistant district attorney (ADA), first in a non-supervisory capacity and eventually in a high-level supervisory capacity.  The judge has decided to recuse on all criminal matters that were pending during while the judge was an ADA, and in any civil matters involving a litigant the judge recognizes as the complainant/victim in a criminal case prosecuted by the judge while an ADA.  However, the judge asks if he/she may preside in civil cases involving litigants who were previously prosecuted by the district attorney’s office. 

          Where a judge was previously the District Attorney, we advised he/she was disqualified from presiding over any cases that were pending as a prosecution or as a matter under investigation during his/her term as District Attorney, without the possibility of remittal (see Opinion 14-10).  Even so, the judge was not disqualified from presiding over other matters simply because they involved an individual who had previously been investigated or prosecuted by the judge or an ADA under his/her supervision (see id.; see also Opinion 14-07 [former county attorney judge may preside over other, unrelated matters involving former respondents]).

          Indeed, “where there is no substantial connection between the circumstances underlying the criminal charges and the facts and legal issues of the matter currently before the judge,” we concluded that “the judge’s impartiality cannot ‘reasonably be questioned’ (22 NYCRR 100.3[E][1]) solely on the basis of his/her prior role as District Attorney” (Opinion 14-10).  We concluded the judge had no obligation to recuse him/herself on an entirely unrelated matter, or to disclose the prior criminal investigation or prosecution, “unless the judge doubts his/her ability to be fair and impartial” (id.).

          We further advised the former prosecutor in Opinion 14-10 that he/she may still preside even if the facts of a prior criminal investigation or prosecution by the judge or his/her subordinates “appear to have some direct or material relevance” to the civil matter before the judge (id.).  In that circumstance, however, disclosure of the connection is required “if the judge … concludes the facts and circumstances of the prior criminal matter are materially relevant to the [civil] case before the judge” (id. [emphasis added]).  After disclosure, the judge may preside even if a party objects, provided the judge can be fair and impartial (id.).

          Accordingly, we conclude the inquiring judge likewise has no obligation to recuse him/herself in unrelated civil matters involving litigants previously investigated or prosecuted by the judge or his/her subordinates during the judge’s tenure as an ADA. 

Local Attorneys

          The judge knows many local attorneys from a long career in the law and from participating in bar association activities with other bar association members.  Some of these attorneys appear as plaintiffs in landlord/tenant or small claims matters in the judge’s court.  The judge asks if he/she may preside when such local attorneys appear as litigants. 

          We have identified “three broad categories of interpersonal relationships between judges and lawyers who appear before them” to help judges “determine what, if any, ethical obligations those relationships impose on the judge” (Opinion 11-125).   Moreover, we have applied the same analysis to other social relationships, including those between judge and litigant (see Opinion 21-04 [“judge need not disclose or disqualify from a criminal matter merely due to an acquaintance-level relationship with the defendant”]).

          The inquiry describes local attorneys whom the judge knows professionally from practicing law and who may be members of the bar association, rather than individuals with whom the judge socializes privately or otherwise maintains a close relationship.  Without more, such relationships are considered acquaintances (see Opinion 11-125 [“a judge is acquainted with an attorney when their interactions outside court result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc.”]).

          “[T]he mere fact that a judge is acquainted with and cordial to an attorney who appears before the judge when they come into contact outside the court - even if such contacts are regular or periodic - without more, is not a reasonable basis to question the judge’s impartiality” (id.).  Nor does membership in the same bar association require disqualification (see Opinion 07-126).  Because disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).