Opinion 95-80

June 8, 1995

Digest:         A town justice employed part time as an investigator by an attorney who is “of counsel” for a two-attorney firm, one of whose attorneys is the part-time assistant district attorney assigned to the judge’s court, should recuse himself/herself in all cases in which that assistant district attorney is involved.

Rules:          22 NYCRR 100.2

Opinion:

         A town justice in a rural county is employed part-time as an investigator by an attorney. That attorney is “of counsel” to a two-attorney firm, one of whose attorneys is a part-time assistant district attorney assigned to the judge’s court. In the county where the judge’s court is located, the district attorney and all three assistant district attorneys are part-time. The judge does not receive any money directly from the firm in which the assistant district attorney assigned to his/her court is a partner but does have contact with the assistant district attorney or his office regarding the matters investigated by the judge.

         Based upon the factual background in the situation presented - a rural county where the district attorney and all assistants are part-time - we conclude that the judge should recuse himself/herself in all cases involving the assistant district attorney presently assigned to the judge’s court. The involvement between the judge and the assistant district attorney’s private law practice gives the appearance of impropriety (22 NYCRR Section 100.2) . To avoid such perception the judge should recuse himself/herself in all cases in which that assistant district attorney is involved. We perceive no ethical problem, however, should another assistant district attorney be assigned to handle the matters in the judge’s court.