Opinion 90-134

September 18, 1990

Digest:         A part-time judge, who also works as a title searcher for several local attorneys, must disqualify himself or herself when such attorneys appear in the judge’s court. The judge may not work part-time in the office of the village, town and school attorney, since this would require an undue number of recusals by the judge, and give rise to an appearance of impropriety, but the judge may serve as the clerk of the board of education, as secretary of the community’s scholarship fund and as secretary of the local youth recreation commission, provided that the judge not preside over any cases involving these groups.

Rules:          22 NYCRR §§100.5(h); 100.2(a) and (c); 100.3(c)(1) and 100.5(c)(1)

Opinion: 

         A part-time judge, who works as a title searcher for many local attorneys, inquires whether disqualification is required when any of those attorneys appear in the judge’s court. The judge also works part-time for an attorney who serves as village, town and school attorney, and, while recognizing that recusal is necessary where the attorney appears in any capacity, inquires whether continued employment in the attorney’s office is appropriate. The judge, in addition, serves as the clerk of the local board of education, and takes minutes of board meetings and performs other duties as required by the board. The judge serves as secretary of the local scholarship fund which awards scholarships, and as secretary of the local youth recreation commission, which formulates recreational activities for young people in the area. The judge inquires whether there is any problem with continued involvement in these activities.

         Section 100.5(h) of the Rules of the Chief Administrator provides:

A part-time judge may accept private employment or public employment in a Federal, State or municipal department or agency, provided that such employment is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties.

         Section 100.2(a) of the Rules provides that a judge “shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary” and section 100.2(c) provides that “no judge shall lend the prestige of his or her office to advance the private interests of others; nor shall any judge convey or permit others to convey the impression that they are in a special position to influence him or her.” Section 100.3(c)(1) provides that “A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, ...” .

         The judge may continue to work as a title searcher for local attorneys, but the judge should disqualify himself or herself when such attorneys appear in the judge’s court. In light of the judge’s financial dealings with the attorneys, the judge’s impartiality could reasonably be questioned, and an appearance of impropriety would occur if the judge presided over cases handled by these attorneys.

         With respect to the judge’s employment in a law office of the attorney who serves as town, village and school attorney, it is evident that such attorney will undoubtedly frequently appear in the judge’s court. Since the judge would be required to recuse himself or herself in a significant number of instances, the judge should cease that employment, pursuant to section 100.5(c)(1) which provides that a judge shall refrain from financial and business dealings “that tend to reflect adversely on impartiality, interfere with the proper performance of judicial duties, exploit judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which he or she serves.”

         The judge’s other extra-judicial activities, including service as a clerk in the board of education, secretary of the scholarship fund and secretary to the youth recreation commission, appear compatible with judicial office and it does not appear that those groups will be involved significantly in litigation in the judge’s court. If any of the groups should appear in the judge’s court, however, recusal would be appropriate.