Opinion 93-73

September 14, 1993

Digest:         A town justice who is permitted to practice law need not recuse himself or herself from proceedings involving the District Attorney's office, after an adversarial proceeding between the justice (representing his or her spouse) and the District Attorney's Office, unless the justice has a personal bias or prejudice against the District Attorney's Office, or the justice's impartiality might reasonably be questioned.

Rules:          22 NYCRR §§100.3 and 100.3(c)(1).

Opinion:

         A town justice who is permitted to practice law, and whose spouse is a defendant in a criminal proceeding in a jurisdiction adjacent to the inquiring justice's, advises this Committee that the attorney who represented the spouse can no longer continue to do so due to a conflict. The inquiring justice is going to be substituted and represent the spouse thereafter. The justice also states that he or she can and has appeared in that other court on behalf of clients, since neither of the justices in that jurisdiction are attorney-justices.

         The inquiring justice plans to make a motion in the criminal case for appointment of a special district attorney due to an alleged personal relationship between the complainant and the district attorney. The disposition of this planned motion clearly is unknown at this time.

         The question in this matter will arise only if the district attorney's office continues to prosecute the case after the inquiring justice's substitution therein. The justice asks if he or she should thereafter recuse himself or herself from any proceeding involving the district attorney's office.

         It is a common practice for justices who are permitted to practice law to be adversarial in their private practices against district attorney's offices, whether it be in local courts presided over by non-attorney justices, county courts, supreme courts or appellate courts, and such practice clearly is permitted without the attorney-justice having to recuse himself or herself from presiding over matters involving the District Attorney’s Office in his or her own jurisdiction.

         However, if the inquiring justice, for any reason, has a personal bias or prejudice concerning the district attorney's office, or if he or she is of the opinion that his or her impartiality reasonably might be questioned in the particular

circumstances, then he or she must recuse himself or herself from matters involving that party, be it the district attorney's office or any other party. [NYCRR Section 100.3 (c)(1)].

         Section 100.3 of the Rules of the Chief Administrator states that “the judicial duties of a judge take precedence over all his other activities.” Therefore, if the justice believes that in the circumstances he or she might not be impartial, perhaps requiring disqualification from all matters in which the district attorney appears, the justice simply should not represent his or her spouse.