October 9, 2012
This responds to your inquiry (12-119) asking about your ethical obligations when a [indigent defense] attorney appears before you in light of your former position as a supervising attorney in the [indigent defense law office] civil division and your current appointment as a judge assigned to a criminal term in another county.
The Committee has previously advised that a judge’s prior supervisory position with [indigent defense law office] or a similar public agency does not automatically mandate disqualification in cases where those agencies appear, provided the judge did not personally participate in the matter or acquire information about the case in his/her supervisory capacity. Here, your former supervisory role was in a division (civil) separate and apart from the division (criminal) in which [indigent defense law office] staff attorneys now appear before you. Furthermore, you do not offer any particular facts which might call into question your ability to be fair and impartial when a particular [indigent defense law office] attorney appears before you (see 22 NYCRR 100.3[E]). Accordingly, in the Committee’s view, under these particular circumstances, there is no ethical impediment to you presiding over criminal matters as, given your prior supervisory position over civil matters in another county, there is no reasonable concern that you would have either participated in or acquired knowledge of the criminal matters now before you.
The Committee does not answer hypothetical or speculative questions. Consequently, the Committee declines to respond to your remaining inquiries concerning possible scenarios which might trigger ethical obligations.
Enclosed, for your convenience, are Opinions 09-139, 93-116, and 92-14 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)