Opinion 92-75

June 18, 1992

Digest:         A village justice should not recuse himself or herself from matters where the village attorney appears for private clients, if the judge believes that he or she can be impartial.

Rules:          22 NYCRR 100.3 and 100.3(c); NYSBA, Code of Judicial Conduct Canon 3; Opinion 88-52.

Opinion:

         A part-time justice of a multi-justice court inquires whether he or she may exercise recusal in matters where the village attorney appears as private counsel. The judge states that opposing counsel have expressed discomfort when the village attorney appears in the judge's court on behalf of private clients and for this reason the judge wishes to recuse himself or herself from all such cases. However there is no indication that the judge could not be fair and impartial to warrant recusal, or that the situation would be any different if some other judge sat.

         A judge's judicial duties take precedence over all other duties (22 NYCRR 100.3). A judge should not recuse himself or herself from proceedings unless his or her impartiality could be questioned or would otherwise create the appearance of impropriety, (22 NYCRR 100.3[c]). The New York State Bar Association has recommended a new Canon 3B(1) for the ABA Model Code of Judicial Conduct providing, "a judge has a duty to sit where not disqualified, which is as strong as the duty not to sit where disqualified " citing Laird v. Tatum, 409 U.S. 814, 837, 1972 and further that, "only bona fide disqualification should remove the obligation to hear and decide a matter."

         This Committee has previously held in Opinion 88-52 in similar circumstances that:

“In the absence of any particular circumstances Indicating a personal bias or disqualifying relationship, the judge should not have to disqualify himself or herself from a matter before the Town Court simply because the part-time village attorney or his/her associates represents one of the parties. The mere fact that both the judge and the attorney serve the village in their respective capacities does not gives rise to a disqualifying relationship. (Emphasis added)

         The judge’s feeling that the village attorney and other appointed attorneys employed by the village should not represent clients in the local court is no indication the judge could not be completely fair and impartial to both sides. Under those circumstances, the judge should not consider recusal, unless he or she believes that he or she could not be impartial.