Opinion: 98-14
January 29, 1998
Digest:    A judge who is being represented by the Attorney General of New York in a Federal District Court action must recuse in cases in which the attorney(s) handling that matter appear before the judge, but need not recuse in cases where the representation is by other assistant attorneys general.

Rules:    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.