Opinion 08-10

February 25, 2008

NOTE: Please consult Joint Opinion 08-171/08-174 before relying on this opinion. To the extent that this opinion is inconsistent with Joint Opinion 08-171/08-174 regarding a judge's disclosure/recusal obligations when his/her personal attorney or his/her personal attorney's partners and associates appear in the judge's court, it is overruled.

         This responds to your inquiry (08-10) concerning whether you are disqualified when an attorney who previously represented you in a private matter appears before you as an assistant public defender while that attorney’s law firm is also currently representing you in another private matter.

         A judge is disqualified in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3 [E][1]). This Committee previously advised, therefore, that a judge should not preside in any case in which either the law firm or a member of the law firm representing the judge in the judge’s pending personal injury lawsuit appears (see Opinion 91-10 [Vol. VII]). You are disqualified as well where the attorney who appears in your court as a part-time assistant public defender also is a member of the same firm that currently represents you in a private matter, because your impartiality, under these circumstances, might reasonably be questioned. While your disqualification is subject to remittal, whether it is proper to sit in a particular case “. . . is a matter confined to the conscience of the particular judge” (see Opinion 91-51 [Vol. VII]; see also People v Moreno, 70 NY2d 403 [1987]). The fact that the Public Defender and the District Attorney will consent to you continuing to preside in cases where the Assistant Public Defender appears is not alone determinative. Consequently, and notwithstanding the parties’ consent, if you still believe that your impartiality may be compromised by presiding, you should exercise recusal.