Opinion 25-21
February 6, 2025
Digest: (1)
A town justice who previously served as a non-supervisory assistant district
attorney in town court and more recently in the county’s youth part (a) may
preside in criminal cases in the town court, provided the judge had absolutely
no involvement in the case as an attorney, and (b) may preside in arraignments
of newly-arrested adolescents or juvenile offenders.
(2) Where one attorney at a law firm is currently drafting a will for the judge
and the judge’s spouse, the judge is disqualified, subject to remittal, in all
matters involving the law firm until the representation terminates and all fees
are paid. Thereafter, for a two-year period, the judge remains disqualified,
subject to remittal, in all matters involving the specific attorneys who were
personally involved in the representation, but need only disclose the former
representation when other attorneys from the firm appear. After that two-year
period, the judge’s obligation ends.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i); 100.3(F); Opinions 23-215; 23-150; 23-44; 21-07; 21-05; 19-110; 19-104; 18-172; 18-42; 18-04(A); 15-211; 08-171/08-174; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring town justice asks about possible conflicts arising from his/her prior employment at the District Attorney’s office and retention of an attorney on a personal legal matter.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in judicial integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including where required by law (see Judiciary Law § 14). Disqualification is required when “the judge knows that…the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]). Disqualification on this ground is not subject to remittal (see 22 NYCRR 100.3[F]). Where objective standards do not mandate disqualification, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
1. Prior Employment as an ADA
The inquiring judge was previously employed as a non-supervisory Senior Assistant District Attorney (ADA).[1] Until nearly two years ago, the inquirer was regularly assigned as an ADA to handle criminal cases in the town court, where he/she regularly collaborated with police regarding warrants, preparing subpoenas in pending investigations and reviewing cases in preparation for plea discussions. Thereafter, pursuant to a new assignment, the inquirer handled matters in the county’s Youth Part involving alleged adolescent and juvenile offenders. The inquirer was also responsible for training and mentoring new ADAs in town and village courts regarding the handling of criminal cases. The judge now asks if he/she may preside in (a) currently pending criminal cases in the town court[2] and (b) arraignments on new arrests of adolescent and/or juvenile offenders as an accessible magistrate.
The scope of a judge’s disqualification obligations related to prior employment in a government law office is determined by the degree of authority the judge exercised in the position (see Opinion 15-211). An attorney with supervisory authority is generally deemed to be involved in all matters involving attorneys subject to their supervision (id.). Here, the judge indicates he/she did not have supervisory responsibilities.
A judge is disqualified from matters in which the judge is aware that they had some personal involvement as an attorney, regardless of how minimal the involvement (see e.g. Opinions 21-07; 21-05; 18-04[A]; 22 NYCRR 100.3[E][1][b][i]). Disqualification on this ground does not expire and is not subject to remittal (see 22 NYCRR 100.3[F]; Opinion 21-07 [disqualification required where judge personally participated in a prior conviction which is an element of the defendant’s currently charged felony offense]).
A judge who is a former non-supervisory prosecutor may otherwise preside in criminal cases prosecuted by his/her former colleagues, provided the judge had no involvement in the matter as an attorney and can be fair and impartial (see e.g. Opinions 18-172; 18-04[A]). Likewise, the judge may preside in new, unrelated cases involving individuals the judge previously prosecuted, even if they involve the same type, or similar type of crime (see e.g. Opinion 18-04[A]).
Applying these principles to the judge’s questions, we conclude that the judge may preside in criminal cases in the town court, provided the judge had absolutely no involvement in the case as an ADA. Thus, if the judge did not handle or supervise any aspect of the arrest, investigation, or prosecution of the case before him/her, it is generally permissible to preside, provided the judge can be fair and impartial.
As to conducting arraignments on new arrests of adolescents or juvenile offenders as an accessible magistrate, the judge may likewise preside in such matters, again assuming the judge had absolutely no involvement in the case as an ADA.
2. Judge’s Personal Attorney
The inquiring judge and his/her spouse have retained an attorney at a local law firm to draft their will. The representation is currently in progress. As they are working exclusively with one attorney at the firm, the judge asks if he/she must disqualify from all cases involving this law firm.
As summarized in Opinion 23-150 (citations omitted):
In general, when a private attorney is representing a judge in the judge’s personal or fiduciary capacity, we have required disqualification for the entire law firm during the representation. For two years after the representation is completely terminated and all fees are paid, the judge is still disqualified, subject to remittal, from all matters in which an attorney who personally represented the judge appears before the judge, and the judge must disclose the former representation when other attorneys from the same law firm appear before the judge. After the two-year period elapses, however, the judge has no further obligation based solely on the former representation.
We have further advised that when an attorney prepares a last will and testament for a judge, and thereafter merely stores the executed original in a safe or safe deposit box pursuant to the attorney’s customary practice, the judge may treat the representation as concluded once all legal work is completed and all fees are fully paid (see Opinion 18-42).
During the Representation: Accordingly, while the representation is ongoing, the judge is disqualified, subject to remittal, for the entire firm (see e.g. Opinions 19-104; 08-171/08-174).
Two-Year Post-Representation Period: Once the legal work is completed and all fees are paid, for a two-year period, the judge remains disqualified, subject to remittal, in all matters involving the specific attorneys who were personally involved in the representation (see Opinions 23-215; 23-44). As a reminder, remittal of disqualification is not allowed without affirmative consent from both sides, after full disclosure of the former representation on the record.
During the same two-year period, where another attorney from the judge’s private attorney’s law firm appears before the judge, the judge must disclose the former representation. If a party objects to the judge’s continued participation in the case, the decision on whether to recusal is solely within the judge’s discretion (see id.).
After Two Years: The judge has no duty to disclose or disqualify after two years have elapsed since representation has concluded. Thus, once the two-year disqualification period has elapsed, any decision whether to disclose and/or recuse is entirely within the judge’s discretion (see id.).
[1] Opinion 19-110 describes our “practical, common-sense” approach to determining when an attorney has a “supervisory role” in an office.
[2] Before leaving the DA’s office, the inquirer identified over a dozen pending cases in which he/she was personally involved; very few are in town court.