Opinion 15-58

March 19, 2015

Please Note: Opinion 17-19 clarifies that disqualification on this basis is generally subject to remittal, provided that no party is appearing without counsel.  (See Opinion 17-19 for additional details.)


Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A judge whose court attorney is elected District Attorney must dis
qualify him/herself for one year, from all matters where his/her office appears.


Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 14-27; 08-107; 04-35; People v Moreno, 70 NY2d 403 (1987).


         A judge whose court attorney may become the local District Attorney asks whether he/she may preside in matters involving the District Attorney’s office if the court attorney is so elected.

         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]). In particular, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The Committee has advised that, “for a period of one year after a law clerk leaves a judge’s employ, the judge must fully disclose the former relationship when the former law clerk appears before the judge, but has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case” (Opinion 14-27 [citations omitted]). In addition, “because disclosure is mandated during this period in lieu of outright disqualification, the judge must not preside if any party is appearing without counsel, without the possibility of remittal” (id.). This principle applies equally when the judge’s former law clerk or court attorney enters government employment (see Opinions 08-107; 04-35).

         The remaining question is whether a judge whose court attorney has become District Attorney - as opposed to an assistant district attorney - may preside over matters in which the former court attorney’s subordinates appear. This appears to be a question of first impression; the Committee has previously addressed the circumstance where a judge’s former law clerk “is now employed as an Assistant Attorney General, with a discrete unit that litigates a particular type of case” (Opinion 08-107) or when the judge’s former court attorney becomes an assistant public defender (see Opinion 04-35), but not the circumstance where the judge’s former court attorney becomes an agency head.

         Here, the District Attorney is the attorney of record for all cases filed by his/her office, and all of the assistant district attorneys are answerable to him/her. The Committee therefore believes the judge must disqualify him/herself for one year from all matters in which the District Attorney’s office appears1.


         1Although the issue may be unlikely to arise, the Committee notes for completeness that the judge is disqualified, subject to remittal, from any cases involving the District Attorney’s office that were pending before the judge during the former court attorney’s employment with the judge (see Opinions 08-107; 04-35).