Public Officers Law §17; 22 NYCRR 100.3(A)(1).
Opinions 94-11 (Vol. XII), 93-61 (Vol. XI), 91-10 (Vol. VI).
The inquiring Supreme Court justice states that in 1992 he/she had "conducted a hearing in an action for monies claimed to be due by a former spouse. I awarded a Judgment and that determination was affirmed by the Appellate Division _______, Department," Other actions involving the ex-husband were before a different Supreme Court justice. Dissatisfied with the results of those actions, the ex-husband wrote to the inquirer requesting that the judge "take action which would have affected the determination of the other Supreme Court Justice. Needless to say, I declined. He thereafter commenced an action in the Federal Court against me. I am being represented by the Attorney General of the State of New York.." The particular attorney representing the judge is in charge of the local office of the Attorney General.
The judge asks "whether as a Justice I may hear cases in which the Attorney General represents one of the parties..."
Section 100.3(A)(1) of the Rules Governing Judicial Conduct requires a
judge to "disqualify himself or herself in a proceeding in which the judge's
impartiality might reasonably be questioned..." Clearly, where the particular
attorney on the Attorney General's staff who is handling the matter appears
before the judge, whether personally or "on papers", an inference of partiality
and an appearance of impropriety could readily arise, and the judge should
exercise recusal. This would extend to any other attorney on the staff
with whom there may have been consultation or who otherwise participated
in the case (see Opinion 94-11 [Vol. XII]) and would apply as well
to uncontested matters being handled by the attorney(s). However, there
is no necessity for recusal in matters in which the appearance is by a
member of the Attorney General's staff who had no involvement in the representation
of the judge in the Federal Court action. Representation by the office
of the Attorney General is not to be analogized to that of representation
of a judge in a personal matter by a law firm, where disqualification might
be required whenever any member of the firm appears. See e.g. Opinion
93-61 (Vol. XI), 91-10 (Vol. VI).) The representation of a judge by the
Attorney General in the circumstances stated, is required by law (Public
Officers Law §17); and it cannot be said that there is a unity of
interest among Assistant Attorneys General throughout the State as there
presumably is among members of a private law firm, so as to require disqualification.