Opinion 24-94

May 9, 2024

Digest:  A full-time judge who previously served as counsel to a town supervisor may sit in the “town part” of the judge’s court and preside over cases where the town attorney appears so long as there are no other conflicts of interest, and he/she can be fair and impartial.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(a)(ii); 100.3(E)(1)(b)(i); 100.3(F); Opinions 23-48; 21-175; 19-156; 18-172; 18-19; 10-190; 87-26; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring full-time judge was previously employed by a town as counsel to the town supervisor.  In that capacity, he/she provided counsel and advice—not limited to legal advice—directly to the town supervisor.  The inquirer did not make court appearances, and although he/she occasionally reviewed legal documents at the town supervisor’s request, that was not the bulk of the work.  The judge asks if he/she may preside in the “town part” of the judge’s court, where the town attorney represents the same town in various matters.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must disqualify in a case where required by a specific rule or statute (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]) or where his/her impartiality otherwise “might reasonably be questioned” (22 NYCRR 100.3[E][1]).  For example, a judge must disqualify when the judge “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]) or if the judge knows that he/she “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]).  Where disqualification is not required under objective standards, a judge is “the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

          We have said a judge’s prior service as a town attorney does not preclude the judge from presiding in cases where a former member of the town board appears (see Opinion 23-48).  Likewise, a town justice who previously served on the town board and voted on legislation and the appointment of the town attorney may preside in cases where the town attorney appears (see Opinion 10-190; see also Opinions 21-175 [judge who previously served on village board may preside when village attorney appears]; 19-156 [judge who was previously a village trustee may preside in village code violations]).

          The same principles apply here.  Although the judge was previously employed by the town, his/her responsibilities were limited to advising the town supervisor (see Opinion 18-172 [“The scope of a judge’s disqualification obligations due to his/her prior employment in a government law office are determined by the degree of authority he/she exercised there”]).  We conclude that the inquiring judge may preside over cases in the “town part” unless he/she was involved in the subject matter of a case or otherwise doubts his/her ability to be fair and impartial (see Opinion 87-26 [judge who previously served as a town attorney and an assistant county attorney need not disqualify when the town or county is a party, so long as he/she was not involved in subject matter in controversy]). 

          We emphasize, however, that if the judge previously “had any involvement as a lawyer” in a matter, the judge’s disqualification is not subject to remittal and does not expire (see Opinion 18-19; 22 NYCRR 100.3[E][1][b][i]; 100.3[F]). 

          For completeness, we note that if the judge becomes aware of a newly filed case that has substantial connections that are material and relevant to a case on which the judge worked during his/her prior employment as counsel to the town supervisor, he/she should disclose on the record the connection as well as the extent of his/her involvement in the prior proceeding.  After disclosure, the judge may preside if the judge can be fair and impartial (see Opinion 18-19).