Opinion 88-52

May 9, 1988

Topic:          Whether a Town Justice, also serving as an Acting Village Justice, must disqualify himself from all matters in which the part-time Village Attorney or his associate appear before him in Town Justice Court representing private clients.

Digest:         Absent any particular circumstances indicating a personal bias, the mere fact that an Acting Village Justice and a part-time Village Attorney are both “employees” of the Village does not give rise to a disqualifying relationship.

Rules:          Canon 3C(1) of the Code of Judicial Conduct; 22 NYCRR 100.3(c)

Opinion:

         A Town Justice, who also serves as an Acting Village Justice, asks whether he must disqualify himself from matters where the Village Attorney, who also appears before him in Village Court on behalf of the Village, represents private parties appearing before him in Town Justice Court. The Judge characterizes the relationship between himself and the Village Attorney as that they are both employees of the Village.

         Where a judge and a lawyer have some degree of relationship or connection, the question whether the Judge should be disqualified from a matter is governed by the Code of Judicial Conduct. In these situations, it is the judge’s duty to consider disqualification, but (in the absence of some disqualifying interest in the matter or family relationship with a party or attorney, and assuming the judge believes he can be impartial) the disqualification of a judge is required only when the situation falls under Canon 3C(1) of the Code of Judicial Conduct (N.Y. State 548 [1983]). The relevant portion of Canon 3C(1) provides that “a judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned....” See also section 100.3(c) of the Judicial Conduct Rules of the Chief Administrator of the Courts (22 NYCRR 100.3(c)) .

         Whether a judge’s impartiality might reasonably be questioned necessarily is a fact question in each case. This, however, does not preclude a conclusion that, in some types of situations, the facts are so clear that, at least prima facie, the judge should, or should not, disqualify himself.

         The situation in question here, on the facts alone, would not seem to fall within the realm of the judge’s impartiality being “reasonably questioned.” In the absence of any particular circumstances indicating a personal bias or disqualifying relationship, the judge should not have to disqualify himself from a matter before the Town Court simply because the part-time Village Attorney or his associate represents one of the parties. The mere fact that both the judge and the attorney serve the Village in their respective capacities does not give rise to a disqualifying relationship.

         This Opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.