Opinion 89-88

September 12, 1989

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant."  The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion. 

Digest:         Judge whose former client is police officer who requests judge to sign warrants of arrest and who appears as a witness in cases in judge’s court should follow the same criteria as to recusal and disclosure as required where attorney was former client of judge as described in Committee Opinion 89-13 (see also Opinion 88-153).

Rules:          22 NYCRR 100.3(c), Ops Adv comm on Jud Ethics 89-13, 88-153

Opinion:

         A part-time judge inquires about the need for recusal or disclosure where the judge, as an attorney, formerly represented a police officer in a real estate transaction, and where the police officer seeks the judge’s signature on a warrant of arrest, or where the police officer appears as a witness in a proceeding before the judge.

         A judge in the above-described circumstances should disqualify himself or herself in these matters for as long as the judge feels that he or she cannot be impartial.

         If and when the judge concludes that he or she would be impartial, and considering all relevant factors, including but not limited to the length of time since the last representation (perhaps using the two-year period of 22 NYCRR 16.1 of the Rules of the Chief Judge as a guide), the judge chooses not to disqualify himself or herself, then, when the police officer appears as a witness, the judge must reveal on the record the judge’s previous relationship with the police officer-witness.

         Both in the case of the signing of a warrant presented by the officer, and in the case of presiding when the officer appears as a witness, a two-year period of disqualification may be more appropriate as a guide than the 6-month period suggested by the inquiring judge. The subsequent disclosure requirement, of course, does not apply to an ex parte application by the police officer for a warrant, unless and until the police officer becomes a witness in the proceeding.

         Where the period of disqualification is terminated and is succeeded by a disclosure requirement with respect to actions where the police officer is a witness, if any party objects to the judge presiding, the judge should consider seriously recusing himself or herself, and should do so, unless the judge believes the objection is frivolous, in bad faith, or is wholly without merit. See Ops Adv Comm on Jud Ethics 89-13, 88-153.