Opinion 95-38

March 9, 1995

Digest:         A part-time judge may continue to preside over cases prosecuted by a part-time assistant district attorney, who is associated with a law firm that may be suing the judge (in another court) in the judge’s capacity as a stakeholder in a matter involving a former client of the judge.

Rules:          22 NYCRR 100.2

Opinion:

         A part-time town judge who is permitted to practice law expects to be joined as a defendant in a litigation involving a former client, in which the judge acted as a trustee-stakeholder of certain construction contract funds. The law firm that represents the plaintiff in the matter includes the part-time assistant district attorney who prosecutes cases in the judge’s court. The prosecutor will not be handling the civil case and it will be brought in a different court. The judge is concerned about any appearance of impropriety.

         In the opinion of the Committee, the judge may continue to allow the assistant district attorney to appear before the Court. The civil matter, as described, does not appear to involve the judge personally but only in the judge’s capacity as a stakeholder. Since the judge has no personal interest in the anticipated litigation, there does not seem to be an appearance of impropriety in continuing to preside over cases being prosecuted by the part-time assistant district attorney.