March 1, 1990
Digest: A part-time judge, who is a practicing attorney, may preside at a criminal trial where the defendant is represented by an attorney who cross-examined the judge as a witness in a civil proceeding in another court. Where the law partner to a part-time judge is also the town attorney, the law partner may not appear in the court where the judge presides, but the town zoning administrator may appear.
Rules: 22 NYCRR §100.2(b); 100.5(c)(1)(2) and 100.5(f)
A part-time judge who is a practicing attorney, testified as a witness at a trial in another court, and was cross-examined by an attorney who now represents a defendant scheduled for a trial before the judge in a criminal proceeding. While there has been no request for recusal, the judge asks if he ethically may preside at the trial.
Section 100.2(b) of the Rules of the Chief Administrator provides that, “no judge shall allow his or her family, social or other relationship to influence his or her judicial conduct or judgment.” Should the judge conclude that his experience with the attorney in question will prevent his presiding at the pending criminal trial in a fair, impartial and unbiased manner, then the judge, sua sponte, should recuse himself. However, the mere fact that the judge was cross-examined in a civil proceeding by an attorney who will be representing a defendant in a criminal jury trial before the judge, is not a ground for mandatory recusal or disqualification.
Additionally, the judge advises that one of his law partners is the town attorney in the town where his court is located. The other town justice is not a lawyer. The judge asks whether his partner may appear and represent the town in proceedings before the non-lawyer judge. Section 100.5(f) of the Rules of the Chief Administrator provides that, “no judge who is permitted to practice law shall permit his or her partners or associates to practice law in the court in which he or she is a judge.” Thus, the judge's partner, as town attorney, may not appear in the town court before the judge or the non-lawyer judge on any matter at any time.
The judge also asks if the town zoning administrator may appear before him, and if the town attorney can advise the town zoning administrator. The rules do not prohibit the appearance in the judge's court by the town zoning administrator.
The question concerning legal advice from the town attorney presents no ethical issue relating to judicial activity, which is the subject matter for consideration by this committee, and we therefore decline to respond to it.