Opinion 21-72


April 29, 2021


Digest:       A town justice may preside in a matter involving an attorney from the law office which filed an Article 78 proceeding against the town and the town court clerk, provided the judge can be fair and impartial.


Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 17-05; 12-94; 12-07; 09-47(B); People v Moreno, 70 NY2d 403 (1987).




         The local public defender’s office has brought an Article 78 proceeding against the town court clerk and the town itself to compel the town court clerk to take certain actions. The town justice asks if it is ethically permissible to preside in an unrelated criminal case where the judge knows that the privately retained defense counsel is also an assistant public defender. On a review of the papers submitted, the Article 78 proceeding does not name the inquiring town justice as a respondent or contain any allegations concerning the justice. Nor does the assistant public defender in question appear to have any direct involvement in the Article 78 proceeding.


         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify in cases where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) and in specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). Conversely, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).


         The mere fact that a judge is named as respondent in an Article 78 proceeding does not, without more, cause the judge’s impartiality to be reasonably questioned in other, unrelated matters wherein the petitioner or the petitioner’s attorney appears (see Opinion 12-07; see also Opinions 09-47[B]; 12-94). Indeed, we have recognized that a rule requiring automatic recusal when a judge is sued in their institutional capacity could enable disgruntled litigants to engage in “judge shopping” (see Opinion 17-05).


         If anything, the connection here is even more remote, as the inquiring town justice is not the named respondent.


         Therefore, we conclude the judge has full discretion to preside in matters involving attorneys from the law office that filed the Article 78 proceeding, provided the judge can be fair and impartial.