Opinion 92-40

March 16, 1992

Digest:         A part-time judge, who has a private practice, need not recuse himself or herself from a criminal proceeding where the defendant is represented by an attorney who is an adversary to the judge in an unrelated civil action in a different court.

Rule:            22 NYCRR 100.3(c).

Opinion:

         A part-time judge, who also is a full-time practicing attorney, has been asked to recuse himself or herself from presiding over a criminal matter in the judge's court where the defendant is represented by an attorney who is an opposing attorney to the judge in an unrelated action in another court.

         No reasonable basis exists to question the impartiality of the part-time judge. The dual role of the part-time attorney-judge is not unique. The scheduling of the criminal matter pursuant to normal court procedures before the judge does not per se affect the impartiality of the judge’s position and, standing alone, is not a reasonable basis to require recusal of the judge.

         If some additional element or complication relating to the other court action or the relationship between the judge and the attorney leads the judge to believe that he or she cannot be impartial in the proceeding, or that his or her impartiality might reasonably be questioned, then the judge should disqualify himself or herself. Absent such circumstances, however, the judge need not recuse himself or herself from the proceeding.