Opinion 95-163

January 25, 1996

Digest:         A part-time judge who is a breathalyzer expert must recuse himself/herself in all cases being handled by any attorney who has retained the judge in a presently pending matter. If a matter in which the judge had been retained is terminated recusal is not mandated in other cases being handled by the attorney, but there must be disclosure of the prior retention. The judge should not be involved in frequent or continuing business dealings with attorneys who are likely to come before the judge's court.

Rule:            22 NYCRR 100.4(D)(1)(c)

Opinion:

         A part-time judge informs the Committee that following his retirement as a New York State Trooper, and prior to his election as town justice he/she “commenced a business as a breathalyzer expert for attorneys in felony and misdemeanor DWI cases...” As stated by the inquirer:

The question has arisen in my mind whether I should recuse myself on any cases where attorneys who have previously hired me, thereafter appear before my court with different clients on totally unrelated criminal or civil matters. Would disclosure of the previous employer be sufficient in this case? Further, would you distinguish between cases for which I had been hired and the case is finished as opposed to a case which would be presently pending and which may require my testimony?

         In the opinion of the Committee, where the case in which the judge had been retained has been terminated the judge need not recuse himself/herself automatically in other cases in which the hiring attorney appears. But, in each instance, there must be disclosure of the prior retention.

         As to attorneys who have cases presently pending which may require the judge’s testimony, or where the judge had otherwise been involved, there must be recusal in all other cases of that attorney.

         Further, the Committee alerts the judge to section 100.4 (D)(1)(c) of the Rules Governing Judicial Conduct which provides that a judge shall not engage in financial or business dealings that “involve the judge in frequent or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.”