Opinion 26-14

February 5, 2026

Digest: Where a part-time town justice is also concurrently employed as a full-time court attorney in a family court:
(1) The judge must not knowingly participate in any town court matter involving a litigant who previously appeared before the judge in his/her non-judicial capacity as a court attorney in a pre-trial proceeding in family court, regardless of whether the family court matter is pending or decided.  Disqualification on this basis does not expire, but it is subject to remittal.
(2) The judge need not conduct a conflicts check on each and every litigant in town court to see if he/she previously conferenced a family court case involving that litigant.  Instead, the judge need only undertake a conflicts check if the judge reasonably concludes that such a conflict may exist.  Where appropriate, the conflicts check may be conducted by asking if the litigant previously conferenced with him/her in family court.
(3) Whether the judge may use a particular family court database to conduct a conflicts check is an administrative question we cannot address.

Rules:   22 NYCRR 100.2; 100.2(A), (B); 100.3(A); 100.3(E)(1); 100.3(F); 100.6(B)(4); Opinions 23-17; 22-166; 21-15; 19-46; 19-05; 18-118.

Opinion:

          The inquiring town justice regularly conferences cases in his/her role as a full-time court attorney to a family court judge, and is aware that he/she “may not preside in a town court case involving a party who previously appeared before him/her as a court attorney in superior court for a pretrial conference of a family court matter” (Opinion 19-05).  The judge requests clarification about this requirement, with questions coalescing around three main topics.  First, the judge asks if he/she must proactively run a conflicts check on every litigant in town court to determine whether he/she participated in a case involving that litigant in family court.  Relatedly, the judge is concerned that sometimes “the name of a litigant in town court sounds familiar but [the judge has] no specific recollection” and thus asks whether a familiar-sounding name triggers a duty to check for prior involvement with that litigant in family court.  Second, as the family court cases are maintained in a universal case management system database, the judge asks if he/she should run a conflicts check using that database.  The judge further asks if he/she may ask another family court employee to conduct the search to avoid any risk of exposure to information about town court litigants.  Third, the judge asks if the need for disqualification in town court “ends on completion of the family court matter” (Opinion 23-17) or whether it persists perpetually “regardless of when the pretrial matter occurred and whether the family court matter was pending or already decided” (Opinion 19-05).

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Although a judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]), a part-time judge may nonetheless maintain public employment that is not incompatible with judicial office and does not interfere with proper performance of judicial duties (see 22 NYCRR 100.6[B][4]).  A judge must not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]); and must disqualify him/herself in any “proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).  The disqualification may be subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]).

          We have said that a town justice who serves as a court attorney “may not preside in a town court case involving a party who previously appeared before him/her as a court attorney in superior court for a pretrial conference of a family court matter” (Opinion 19-05).  The issue presented here is what steps, if any, the trial court judge must take to avoid this disqualifying conflict.

          In that respect, we have said that while trial judges “need not undertake extraordinary measures, they must adopt reasonable procedures to avoid conflicts” (Opinion 22-166 [internal quotation omitted]).  Thus, a judge should “exercise due diligence to determine if he/she has a conflict of interest before participating” in a case (Opinion 19-46).  We emphasize the need for “reasonable procedures” because, as described, we conclude that it would be patently unreasonable to require this judge to conduct a formal conflicts check on every litigant who appears in his/her courtroom to determine whether the litigant has ever appeared before him/her in family court.  We do not impose such a requirement.

          In another context, we advised that a trial judge need not conduct a universal conflicts check on all those parties appearing before him/her as “it would be unduly burdensome and unnecessary for the judge to determine whether or not any Agency officer or employee was involved in every accusatory instrument, application or motion before the judge” (Opinion 21-15).  We concluded that the judge’s obligation to disqualify applies to those cases, both pre and/or post judgement, in which the judge “knows or it is clearly brought to the judge’s attention” that a conflict existed (id.).

          We reached the same conclusion involving the clients of a full-time judge’s former law firm in Opinion 18-118.  Quoting Opinion 16-36, we reiterated that the judge’s obligation regarding disclosure or disqualification “applies only to clients the judge actually recognizes as current or former clients of the firm, or if such representation by the judge’s former law firm is otherwise brought to the judge’s attention.”  We added it “would be unduly burdensome and unnecessary for the judge to run every party appearing before him/her through the law firm’s database to determine if a client relationship exists or ever existed during the judge’s former employment with the firm” (Opinion 18-118).  Thus, we concluded the rules do not “require a judge to conduct an active search or otherwise take extraordinary steps to uncover possible” conflicts (id.).  Recognizing that the Rules Governing Judicial Conduct are “rules of reason,” we offered a simple solution to determining whether a conflict existed in that instance: “If the judge suspects a litigant had or has a connection with his/her former law firm, the judge may ask the parties and/or their counsel about it” (id.).  The same applies here.

          We likewise decline to impose a requirement that the inquiring judge must conduct a conflicts check if the name of a litigant “sounds familiar.”  In our view, mere familiarity of a name does not, without more, imply that a litigant had previously appeared before the judge in family court.  The determination of whether a “familiar sounding” name warrants further investigation is an issue left to the discretion of the judge.  As in Opinion 18-118, the judge may alleviate any such concern by simply inquiring of the litigants or their counsel as to whether they have appeared before the judge in his/her role as a court attorney.

          With respect to the judge’s proposal to use the family court’s universal case management system database to check for potential conflicts, either directly or through a third party, we conclude that the propriety of access to this database is an administrative decision that rests with the appropriate court administrators.  We therefore decline to comment on the circumstances under which a town justice, or a family court employee acting on his/her behalf, might ethically access such database as part of a conflicts check for the town court.

          Finally, the duration of any disqualification requires us to revisit two prior opinions.  In Opinion 19-05, we said that the disqualification based on the trial judge’s prior experience with the litigant in a superior court was perpetual:  “If the local justice pre-tries a family court matter, then he/she cannot preside in a subsequent local criminal court matter involving the same party and recusal would be appropriate regardless of when the pretrial matter occurred and whether the family court matter was pending or already decided.”

          As the inquiring judge has noticed, we recently reached a different conclusion.  In Opinion 23-17, we advised that the need for insulation in superior court based on a town court case “terminates when the town court matter ends.”  In the next paragraph, without any analysis of Opinion 19-05, we simply applied that same rule to the reverse circumstance and said that any disqualification in the town court “ends on completion of the family court matter” (id.).

          Now that this discrepancy has been brought to our attention, we follow the more considered guidance of Opinion 19-05 and conclude that the local judge is disqualified from participating in any matter involving a litigant who appeared before the judge in his/her capacity as a court attorney in a pre-trial proceeding in family court, regardless of whether the family court matter is pending or decided, and the obligation does not expire.  In light of this conclusion, Opinion 23-17 is hereby modified to be consistent with the present opinion and the final paragraph of the “Discussion” section of Opinion 23-17 is overruled.

          For completeness, we note that disqualification in town court on this basis is subject to remittal under Section 100.3(F).  We therefore provide a brief reminder of the applicable principles:  Remittal requires both full disclosure on the record of the basis for disqualification and the voluntary, affirmative consent on the record of all parties and (if represented) their attorneys to waive or remit the judge’s disqualification.  Thereafter, provided the judge concludes he/she can be fair and impartial and is willing to preside, the judge may participate in the proceeding.