Opinion 04-35

April 22, 2004

Note: This Opinion has been modified by Joint Opinion 10-107/10-158 (after disclosure, the judge has discretion, based on the facts of the particular case, to grant or deny a party's request that the judge recuse him/herself).


Digest:         (1) A county court judge should recuse in Public Defender cases that were pending before the judge at the time the judge’s court attorney resigned to take a position with the office of the Public Defender. (2) For a period of one year the judge should disclose the prior relationship when the former court attorney appears before the judge, and offer to recuse.


Rule:            22 NYCRR 100.1; 100.3(E)(1), (F); Opinion 94-05 (Vol. XII).


         The inquiring county court judge informs the Committee that his/her court attorney has recently resigned to return to private practice, and to take a part-time job with the local Public Defender. At the time the court attorney left, there were four Public Defender cases pending before the judge. The judge asks whether he/she should exercise recusal in these four cases, and, further, whether there is a time period during which the attorney should not be appearing before the judge.

         In the opinion of the Committee, the judge should recuse in the four Public Defender cases that were pending before the judge as of the date the court attorney departed. Given the close working relationship between court attorney and judge and regardless of whether any discussions did or did not take place between them concerning those cases, an appearance of impropriety could be created should the judge continue to exercise authority over these cases. 22 NYCRR 100.2. Such recusal is subject to remittal. 22 NYCRR 100.3(E)(1); 100.3(F).

         Further, we deem it advisable that for a one-year period, should the former court attorney appear before the judge, the judge should disclose the prior relationship and recuse, if requested. See, e.g. Opinion 94-05 (Vol. XII).