Opinion 24-81

May 9, 2024

Facts/Issue:    The town prosecutor was a defendant before the inquiring town justice in a Vehicle and Traffic Law matter and remains subject to an unexpired conditional discharge from a negotiated plea.  The judge asks if he/she may preside in criminal cases brought by that town prosecutor.  Moreover, as the town prosecutor’s law firm has been hired as the town attorney, the judge also asks if he/she may preside in matters involving the town prosecutor’s law firm partners and associates.

Discussion:     Provided the judge can be fair and impartial, he/she may preside in a case where an attorney who regularly appears before the judge in one capacity (e.g. as town attorney) appears before the judge in another capacity (e.g. as a party, witness, or privately retained attorney).  This includes attorneys who appear before the court as defendants in criminal matters.   

                      In addition, although a town justice may not preside in matters involving individuals who participate in setting the judge’s salary and the court’s budget, such as the town supervisor or town board members, he/she may ordinarily preside in matters involving other individuals employed by the town as long as he/she can be fair and impartial. 

Conclusion:     A town justice is not disqualified in a case merely because it (i) is prosecuted by an attorney whose conditional discharge is still pending before the judge and/or (ii) involves that attorney’s law firm partners or associates.

Authorities:  Opinions 21-164; 14-120; 14-62; 07-122; 94-84; 94-62; 93-40; 92-75.