Opinion 94-71

September 22, 1994

Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51).  Please see Opinion 15-51 for factors to consider in exercising this discretion.

Digest:         A part-time judge who is a practicing attorney should disqualify himself or herself where the police officer, appearing as arresting officer or witness, is a present client of the judge, or is a former client whose representation was within the past two years. If more than two years have elapsed the judge should make full disclosure on the record and should disqualify if any party objects to the judge’s presiding, unless the judge believes the objection to be frivolous, made in bad faith or is wholly without merit.

Rules:          22 NYCRR 100.3(c)(d); Opinion 92-01, Vol. IX

Opinion:

         A part-time town judge who is a practicing attorney states that he/she has been asked by police officers to represent them in civil matters that are totally unrelated to the matters in which they are appearing in the judge’s court. The judge asks the following questions.

1) May I preside in cases in which these officers may be arresting officers or witnesses in my court?

2) Does it matter whether they are current or former clients?

3) Does it matter if no appearance occurs and the defendants plead guilty by mail?

         The judge may not preside in cases in which the officers appearing as witnesses or arresting officers are current clients of the judge. As to past representation, the Committee addressed the question in Opinion 92-01, Vol. IX, in which we stated:

If the last representation of the client by the attorney-judge occurred within the past two years, the judge should disqualify himself or herself (22 NYCRR 100.3(c)) , subject to remittal of disqualification, if all parties affirmatively consent to the judge’s presiding (22 NYCRR 100.3(d)).

If two years have elapsed since the last representation, the judge need not recuse himself or herself provided that the judge believes that he or she can be impartial. Nevertheless, the judge should disclose the relationship on the record, and should recuse himself or herself if any party objects to the judge’s continuing to preside, unless the judge believes, under all circumstances, that the objection is frivolous, in bad faith or wholly without merit. Circumstances to be considered in making that determination include, but are not limited to, the amount of time that has elapsed since the last representation, and the nature and duration of the representation, the nature of the instant proceeding, and whether there are any special circumstances creating a likely appearance of impropriety.

         The Committee adheres to the opinion expressed in Opinion 92-01, Vol. IX, a copy of which is provide to the inquirer.

         As to question “3", the requirements stated above are not altered by the fact that there is a plea by mail. However, the judge is not required to separately scrutinize all pleadings for the purpose of determining whether the officer involved in a particular case is a client. In the absence of knowledge that the arresting officer is a client, the judge is entitled to proceed with respect to the processing of the mail plea.