Opinion 09-107


June 3-4, 2009


Note: Opinion 15-51 advises that, "once the two-year period elapses, it should be within the judge’s discretion whether to disclose that the judge or his/her former law firm colleagues represented a client who is currently before the judge as a litigant." The present opinion has been modified to the extent inconsistent with this view (see Opinion 15-51). Please see Opinion 15-51 for factors to consider in exercising this discretion.


 

Digest:         (1) A part-time town justice must disqualify him/herself when the town supervisor’s sibling is the defendant in a small claims case. The judge’s disqualification is subject to remittal unless a party appears without a lawyer. (2) A part-time town justice must disqualify him/herself when a former client appears in the judge’s court fewer than two years after the representation ended. The judge’s disqualification is subject to remittal unless a party appears without a lawyer. Thereafter, the judge must disclose the former representation and disqualify him/herself upon request unless the judge concludes the request lacks merit after considering all relevant factors.

 

Rule:            22 NYCRR 100.2; 100.2(A); 100.2 (B); 100.3(E)(1); 100.3(F); Opinion 09-19


Opinion:


         A part-time town justice asks whether he/she may preside in a small claims case where the town supervisor’s sibling is the defendant. The inquiring judge indicates that the town supervisor was a member of the town board when the judge was appointed town judge and, as a member of the town board, participates in setting the judge’s salary.


         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and independence of the judiciary (see 100.2[A]). Therefore, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). And, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).


         In the Committee’s view, the judge’s impartiality could reasonably be questioned should the judge preside in a small claims case where a sibling of the town supervisor, who sets the judge’s salary, is the defendant (see 22 NYCRR 100.3[E][1]). Therefore, the judge must disqualify him/herself (see id.). Remittal of disqualification would be available only in the relatively unlikely event that both parties in the case are represented by a lawyer (see 22 NYCRR 100.3[F]).

 

         The judge also asks whether he/she may preside in a case that the Town Code Enforcement Officer/Building Inspector filed in the Town Justice Court charging the defendant with violating both town and state zoning ordinances. The judge advises that he/she previously represented the Town Code Enforcement Officer in a private real estate matter and received a legal fee for doing so.


         When a former legal client appears in a judge’s court fewer than two years after the representation ended, the judge must disqualify him/herself, subject to remittal (see 22 NYCRR 100.3[E][1]; 100.3[F]). Thereafter, the judge must disclose the former representation and disqualify him/herself upon request unless the judge concludes the request lacks merit after considering all relevant factors (see Opinion 09-19). The judge need not disqualify him/herself if the Deputy Code Enforcement Officer appears in the judge’s court (see id.).