Opinion 89-117

October 24, 1989

Digest:         A judge who previously was employed as a county attorney may not preside over matters in which the judge formerly was the attorney of record, whether or not the judge personally had participated in the case. He may preside in matters in which he was not the attorney of record and did not personally participate as a lawyer.

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

Opinion:

         A judge who was employed as a county attorney asks whether it is proper to preside over cases where the judge previously had served as lawyer, and preside over cases where a party is represented by an attorney with whom the judge previously was associated in the county attorney’s office.

         Section 100.3 ( c)(1) of the Rules of the Chief Administrator of the Courts states as follows:

A judge shall disqualify himself or herself in a proceeding in which his 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 . . . .

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Section 100.3 (d) provides:

A judge disqualified by the terms of subparagraph ( c) (1)(iii), (iv) or (v) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis for such disqualification. If, based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys, independently of the judge’s participation, all agree that the judge’s relationship is immaterial or that his or her financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.

         The judge may not preside over a case in which the judge was the attorney of record, regardless of whether the judge personally handled the matter. The prohibitions set forth by the rule may not be overcome by written consent of the parties. The judge, however, may hear cases where the judge was not the attorney of record for a party, and the judge did not participate in the case as a lawyer, even if the judge previously was associated in the same county attorney’s office with the attorney currently handling the matter.