Opinion 87-26

January 28, 1988

Topic:          Disqualification by reason of prior employment by municipality.

Digest:         Judge who was employed as town attorney and county attorney prior to election is disqualified from sitting on any matter in which he was directly involved; for a reasonable period of time after termination of employment, he should reveal his prior employment in any case involving the municipalities and recuse himself if requested.

Rules:          Code of Judicial Conduct, Canon 3; 22 NYCRR 100.3(c)(d) .

Opinion:

         The question posed is whether a judge who was formerly employed as a county attorney and town attorney must disqualify himself from sitting in any case in which either of his former employers is a party.

         Another question is whether a judge who formerly was an Assistant District Attorney must disqualify himself in every case in which a fellow Assistant District Attorney represents a party.

         The panel received the inquiry from a sitting judge who, prior to his election, has served as: town attorney; county attorney; assistant district attorney. His inquiry is when he should disqualify himself because of these prior associations.

         The Rules of the Chief Administrator of the Courts (22 NYCRR 100.3) provides:

(c) Disqualification. (1) a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:

(I) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(ii) the judge served as a lawyer in the matter in controversy, or a lawyer with whom he or she previously practiced law served during such association as a lawyer concerning the matter,...

(d) Remittal of disqualification. A judge disqualified by the terms of subparagraph (c)(I) (iii) or (iv) of this section may, instead of withdrawing from such proceeding, disclose on the record the basis for such disqualification. If, based on such disclosure, the parties’ and lawyers, independently of the judge’s participation, all agree in writing that the judge’s relationship is immaterial ..., the judge is no longer disqualified, and may participate in the proceeding. ...

         Under the above rule, a judge who was formerly employed as an attorney for a municipality is not forever disqualified from participating in a proceeding involving that municipality. He or she is disqualified if he or she was involved in the subject matter in controversy.

         Similarly a judge who once served as an assistant district attorney is not disqualified from participating in matters in which one of the parties is represented by a former associate. He or she is disqualified if the subject matter in controversy involves a subject in which he or she was involved as an assistant district attorney.

         To avoid an appearance of impropriety, the judge, for a reasonable period of time after termination of employment, should reveal his or her prior employment or association and permit the parties and their attorneys to determine whether they might wish to request that he or she withdraw from further participation in the matter and withdraw if requested.