Opinion 92-49

May 7, 1992

Digest:         Part-time judges are not disqualified from presiding over actions brought by an attorney to collect fees merely because the attorney has an active practice in the judges' court.

Rules:          22 NYCRR 100.2(a); 100.3(a) and (c).

Opinion:

         Two part-time judges inquire whether they would be disqualified from presiding in actions commenced by a local attorney to collect legal fees, because that attorney has an active practice in their court. The judges apparently fear that permitting an attorney who frequently appears before them to maintain actions in their court on his own behalf might give rise to an appearance of impropriety.

         Section 100.2(a) of the Rules of the Chief Administrator provides, in part, that every judge "shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary." Section 100.3(a)(4) provides that every judge "shall accord to every person who is legally interested in a matter or his or her lawyer, full right to be heard according to law ...". The grounds for judicial disqualification are set forth in section 100.3(c).

         An attorney has the same right as any other citizen to resort to the courts to enforce his or her contractual rights. If the claim presented by the attorney in question comes within the territorial and monetary jurisdiction of the judges' court, and the only relationship between the judges and the attorney is that the attorney has an active practice in their court, then the judges have no valid basis to disqualify themselves. The judges can avoid an appearance of partiality or impropriety by treating the attorney in the same manner as they would treat any other litigant in their court, provided the justices feel that they will be impartial.