Opinion 95-86 [A]

June 8 , 1995

Digest:         (1) A judge of a county court, who had, until recently, served as the District Attorney, may preside at criminal trials where the assistant district attorney appearing as prosecutor had originally been appointed by the judge, acting in the former capacity, provided that the judge did not personally participate in the prosecution of such cases. (2) The judge need not recuse himself or herself in cases prosecuted by an assistant district attorney who once represented the judge's spouse, but (3) should do so where the judge's spouse is a member of another prosecutor's campaign committee.

Rules:          22 NYCRR 100.2; 100.3(c)

Opinion:

         A judge of the County, Family and Surrogate's Courts in a particular county, who, until December 31, 1994, had been the District Attorney in the county in which these courts are located, makes several inquiries concerning the judge's ability to preside at criminal trials. The judge advises that the judge "appointed the entire staff of the current District Attorney's Office", and that the current District Attorney had been an assistant during the judge's tenure in the former office. The judge also advises that "all of the indictments that were filed while I was District Attorney have been resolved".

         In answer to the judge's first inquiry, the Committee is of the opinion that the circumstances outlined above do not prohibit the judge from presiding at criminal trials in the county court. This is, of course, subject to the judge's being personally satisfied of his/her own ability to preside fairly and impartially (see 22 NYCRR 100.2; 100.3[c]; Opinion 93-62 Vol. XI). The facts as revealed by the inquiry seem to minimize the possibility that the judge will have personally participated in the investigation or prosecution of any of the cases which are now to come before him/her. However, the judge should recuse himself from presiding on any case in which he/she "personally participated" (Opinion 92-14, Vol. IX).

         The judge makes additional inquiries concerning whether he/she should preside in those cases which may be prosecuted by particular individual assistant district attorneys, including an assistant district attorney who once represented the judge's spouse, an assistant district attorney in whose campaign for political office the judge's spouse intends to participate, and an assistant district attorney whose former law partner represented the judge and the judge's family in connection with the establishment of a trust. The judge informs us that the trust referred to was established five years ago.

         The Committee has previously advised that a judge may permit his or her former attorney to appear before him or her if more than two years have passed since the representation, and the judge is confident in his or her ability to be impartial (see Opinions 92-54, Vol. IX; 93-09, Vol. x; 88-153, Vol. III). Therefore, in the case of the part-time assistant district attorney whose partner formerly represented the judge, and in the case of this assistant district attorney's partner (also a part-time assistant district attorney), the judge should disclose the relationship to adverse counsel, and may preside either upon such counsel's granting of his or her consent, or upon a determination that such consent is being withheld arbitrarily.

         In the opinion of the Committee, there is nothing to prevent the judge from presiding at a trial where the prosecutor had, in the past, furnished legal representation to the judge's spouse. However, the Committee is of the view that the judge's impartiality "might reasonably be questioned" in any case where an assistant district attorney who is running for political office with the active support of the judge’s spouse, appears before the judge, so that recusal of the judge in such a case during the course of the campaign would be warranted (22 NYCRR 100.3[c]) .

         The Committee also concludes, in response to another inquiry by the judge, that the judge may preside where the appearing assistant district attorney is godfather to the judge's child. This religious relationship is not a disqualifying relationship, again, provided the judge believes he or she will be impartial.