March 25, 2014
This responds to your inquiry (14-22) asking whether you may preside over cases in which your former colleagues at the County Conflict Defender’s Office appear as counsel once you become a full time judge and resigned your position as a part-time Conflict Defender.
A judge must avoid impropriety and its appearance in all the judge’s activities and must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.2; 100.3[E]). Thus, you are disqualified from presiding in any case where you were directly involved as a part-time conflict defender. Such disqualification is not subject to remittal (see 22 NYCRR 100.3[F]). However, other attorneys from the Conflict Defender’s Office may appear before you either as an assistant conflict defender or as private counsel, as long as you were not directly involved in the proceeding and as long as you believe you can be fair and impartial. Similarly, you may preside in cases involving a party previously represented by an attorney from the Conflict Defender’s Office as long as you were not directly involved in the case and as long as you believe you can be fair and impartial.
Enclosed, for your convenience, are Opinions 13-138; 07-23 and 91-54 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)