Opinion 95-113

September 21, 1995

Digest:         A full time judge who is a former district attorney and whose lawyer is seeking to depose the current district attorney in connection with an action for civil rights violations brought against the judge, in his/her capacity as former district attorney, by a former criminal defendant, need not recuse himself/herself prior to the deposition from cases in which the district attorney personally appears unless the judge believes he/she cannot be impartial.

Rules:          22 NYCRR 100.2, 100.3(c)(1)

Opinion:

         A former district attorney, now a full-time judge, is being sued by a former criminal defendant in a Federal civil rights action. The judge inquires whether he/she must disqualify himself/herself from all actions in which the current district attorney appears before the judge, as the judge’s attorney is planning to depose the new district attorney. The judge’s letter to the Committee provides no information as to possible conflicts resulting from the taking of the deposition. However, the inquirer has attached a copy of counsel’s letter in which counsel sets forth the reasons for the deposition which, if confirmed, could seriously raise questions of the judge’s impartiality to sit in any matter before him/her in which the district attorney appears as counsel.

         Section 100.2 of the Rules of the Chief Administrator of the Courts requires that a judge not only avoid impropriety but also the appearance of impropriety. A judge must also be impartial and diligent in the performance of his/her judicial duties and must conduct himself/herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Section 100.3 (c)(1) of the Rules of the Chief Administrator states that a “judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned.”

         In the opinion of the Committee, on the facts presented, the judge need not disqualify him/herself if the judge feels that he/she will be impartial. Otherwise, of course, there must be disqualification.

         We note, however, that there exists the possibility that the information disclosed in the deposition may be such that the judge feels that he/she can no longer be impartial, in which event there should be disqualification.