is not required in a proceeding involving an attorney who had represented
another individual in a lawsuit in federal District Court against the judge
more than 15 years earlier in the judge's then capacity as an assistant
district attorney, provided that the judge feels that he/she can be fair
Rule: 22 NYCRR 100.3(E)(1);
Opinions 88-54 (Vol. II);
95-113 (Vol. XIII); 98-114.
A full-time judge inquires if disqualification is required in a proceeding involving an attorney who represented an individual in federal District Court in a lawsuit against the judge. The previous suit occurred more than 15 years earlier and was commenced against the judge in the judge's former capacity as an assistant district attorney. The attorney is now appearing before the judge on behalf of a different client.
Under section 100.3(E)(1) of the Rules Governing Judicial Conduct a judge is required to disqualify him/herself in any proceeding in which the "judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1).
In Opinion 98-114, the Committee construed that provision in relation to a similar situation. In that matter, the judge, who previously had been the District Attorney, had commenced an action against an attorney currently representing a client appearing the judge. The Committee advised that there was no required disqualification under those circumstances. Opinion 98-114. That is, those circumstances did not give rise to the conclusion that "the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1).
Similarly, in the instant matter, the fact that the judge had been a defendant in an action more than 15 years earlier, commenced on behalf of another litigant by an attorney representing one of the current litigants does not by itself create a reasonable question concerning the judge's impartiality. See also Opinions 88-54 (Vol. II); 95-113 (Vol. XIII).
Therefore, on the facts presented and the judge's belief that he/she can
be impartial, the Committee advises that disqualification is not required.