September 12, 1989
Digest: (1) Absent any particular circumstances indicating a personal bias, the mere fact that an acting village justice and a village attorney both are “employees” of the village does not give rise to a disqualifying relationship so as to require the acting justice’s recusal when the village attorney appears in the acting justice’s court.
(2) An acting village justice may not turn regularly to the village attorney for legal advice on criminal or civil cases before his court, where the village attorney regularly and frequently appears in the village court.
Rules: Canon 3C(1) of the Code of Judicial Conduct; 22 NYCRR 100.3(a)(4), and 22 NYCRR 100.2
An acting village justice asks whether there is a conflict of interest when the village attorney appears in the village court on a regular bi-weekly basis. This first question has been answered in the negative by Opinion 88-52, to which we adhere. There is no inherent conflict which would require recusal.
The second question is whether a village justice may request legal advice on a regular basis from the village attorney in criminal or civil cases pending before the village court when that village attorney also appears on a regular basis in village court. Canon 3A, paragraph (4) of the Code of Judicial Conduct and the rules of the Chief Administrator (22 NYCRR 100.3(a)) each provide in pertinent part:
A Judge shall accord to every person who is legally interested in a matter, or by his or her lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate or consider ex parte or other communications concerning a pending matter.
A Judge, however, may obtain the advice of a disinterested expert on the law applicable to a matter before him or her if notice by the Judge is given to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
In requesting on occasion legal advice from a village attorney on a matter before the court, the justice must consider this an ex parte communication and must make full disclosure to the parties involved regarding the advice sought and the opinion received, and must provide to the parties the opportunity to respond to the opinion. However, the decision must be that of the justice. This is the general rule regulating the propriety of a justice’s seeking advice on occasion from an expert such as a village attorney.
However, in the circumstances indicated in this particular case, by way of an exception to the general rule, this question clearly requires a negative response. There could be a clear appearance of impropriety where the local village justice as a matter of routine practice would turn on a regular basis to the village attorney as an expert, and then have the same attorney appear in his or her court on a regular basis in other matters. Litigants rightly might conclude that the justice would be likely to favor in litigation a village attorney whose legal advice the justice constantly seeks.