Opinion 90-136

October 23, 1990

Digest:         A judge need not disqualify himself or herself when the attorney appearing before the judge was the judge’s opponent in a political campaign, especially where the election was one and a half years ago.

Rules:          22 NYCRR 100.3(c)(1)

Opinion:

         A part-time judge asks whether a judge who leaves the bench must refrain, for a certain period of time, from practicing in the court in which he or she is no longer a judge; whether an attorney, who is a former judge, has a right to demand that a judge recuse himself or herself because of difficulties experienced while both were sitting judges in the same court; and whether a judge must recuse himself or herself from all matters handled in his or her court by the particular attorney because the attorney ran an unsuccessful election campaign against the judge.

         The judge’s first question, whether a lawyer may practice in the court where the lawyer formerly was a judge presents a question of professional ethics, not judicial ethics, which is not for this Committee to resolve.

         As for the judge’s subsequent questions, Section 100.3(c)(1) of the Rules of the Chief Administrator provides as follows:

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.

         The fact that the attorney appearing before the judge was the judge’s former judicial colleague and an opponent in a political campaign does not per se require disqualification or recusal, especially where the election was one and a half years ago.

         However, the judge should bear in mind the requirement of section 100.3(c)(1) concerning judicial disqualification in a case in which the judge’s impartiality “might reasonably be questioned”. Whether the judge’s impartiality might reasonably be questioned in this case depends on the facts and circumstances, including the time elapsed, the bitterness of the campaign, and the personal quality of the campaign. This Committee is not in a position to pass on such factual issues and the judge must decide for himself or herself whether his or her impartiality might reasonably be questioned. Of course, if the judge doubts his or her ability to be impartial, the judge must disqualify himself or herself.