Opinion 07-30

          April 19, 2007

Digest:         A judge must disqualify him/herself in any matter in which the judge participated in any way, personally or in a supervisory capacity, while serving as an Assistant Corporation Counsel prior to becoming a judge.

Rules:          22 NYCRR 100.3(E)(1)(b)(i); 100.3(F); Opinions 99-11 (XVII); 97-08 (Vol. XV).

Opinion:

         A full-time judge who has served for several years in one court is now serving in a court where cases involving the Corporation Counsel’s office of a certain municipality are likely to appear. Before becoming a judge, the inquirer served as a part-time Assistant Corporation Counsel in that office. The judge now inquires regarding disqualification in cases involving the Corporation Counsel’s office.

         The Rules Governing Judicial Conduct require a judge to disqualify him/herself if the judge knows that he/she served as a lawyer in the matter in controversy. 22 NYCRR 100.3(E)(1)(b)(I). This disqualifying circumstance is not subject to remittal by the parties. 22 NYCRR 100.3 (F).

         In the instant inquiry, given the passage of time, it is highly unlikely that any cases to be assigned to the judge were pending in the Corporation Counsel’s office at the time the judge was employed in that position. Nevertheless, should such a case come before the judge, the judge must disqualify him/herself and may not preside over any matter in which the judge participated in any way, personally or in a supervisory capacity, while serving as an Assistant Corporation Counsel. Opinions 99-11 (XVII); 97-08 (Vol. XV).