Opinion 91-63

April 25, 1991

Digest:         A part-time judge is disqualified from presiding over a case in which one attorney is also an elected village trustee who participates in setting the judge's salary

Rules:          22 NYCRR §100.2(a).

Opinion:

         A part-time judge asks whether the judge may preside over a criminal case in which the defense attorney is also an elected village trustee who participates in setting the judge's salary and the court's budget.

         Section 100.2(a) of the Rules of the Chief Administrator requires that a judge “conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” In Opinion 88-17(b); 88-34, Vol. 11, and Opinion 90-175, Vol. VI, this Committee found that a part-time judge must disqualify himself or herself where a public official, who participates in setting the judge's salary, appears as an attorney before the judge.

         The fact that the attorney here represents a criminal defendant does not change the situation and, accordingly, in order to avoid the appearance of impropriety, the judge may not preside over the case. Similarly, an acting part-time judge also is disqualified from presiding over a matter in which an attorney, who participates in setting the acting judge's salary, appears. If these judges are also judges in the town court, they may not preside over cases in that court either, when the village official appears as an attorney. The other town justice, however, is not disqualified, as that justice's salary is unaffected by the village official.