Opinion 93-117

December 9, 1993

Digest:         A judge need not disqualify himself or herself from presiding over a matter if an associate attorney of one of the law firms representing a party in the matter has been commissioned into the state militia by the judge and works in an administrative capacity with the judge who is a commissioned officer in said militia. However, if the attorney himself appears before the judge, disclosure should be made.

Rules:          22 NYCRR §§100.3(c)(i) and 100.3(d)

Opinion:

         A full-time judge, who is an officer in a local unit of the state militia, asks whether he or she can preside over matters in his or her court where one of the parties is represented by a law firm which employs an attorney whom this judge wishes to commission as an officer in the judge's state militia unit. The attorney in question is an associate in a law firm that makes frequent appearances in the inquiring judge's court. Although the inquiring judge indicates that this attorney, if commissioned, will work closely with the judge in an administrative capacity while exercising militia duties, the judge does not say with what regularity this relationship will take place.

         Section 100.3(c)(1) of the Rules of the Chief Administrator sets forth, in part:

(1) A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned.

However, disqualification under this section may be remitted under section 100.3(d) which provides:

(d) Remittal of Disqualification. A judge disqualified by the terms of subparagraph (c)(1)(iii), (iv) or (v) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If, based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys,independently of the judge's participation, all agree that the judge's relationship is immaterial or that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.

         If the judge believes that he or she can be impartial while presiding over matters represented by members of the law firm with which this attorney is associated, other than the subject attorney, this Committee finds no ethical requirement that the judge disqualify himself or herself. However, it is recommended that disclosure be made when and if the subject attorney personally appears before the judge.