March 15, 2017
This responds to your inquiry (17-10) asking if it is ethically permissible for a newly elected judge to preside over matters that arose during his/her prior tenure as the County Attorney where 1) he/she was not listed as the attorney of record in the matter by name or by title; 2) was not directly or personally involved in litigating the matter; but 3) had some supervisory responsibility and involvement.
The Rules Governing Judicial Conduct provide that a judge must disqualify him/herself in any proceeding in which the judge knows that he/she served as a lawyer in the matter in controversy (see 22 NYCRR 100.3[E][b][i]). Thus, the Committee has previously advised that a judge is disqualified from cases that were pending or under investigation during his/her tenure as County Attorney. Remittal is not available in these cases (see 22 NYCRR 100.3[F]). The fact that the judge was not listed as the attorney of record does not change the outcome. However, the judge may preside over new matters involving the County Attorney’s office, provided they were not pending or under investigation while the judge was in office and further provided the judge can be fair and impartial.
In some situations, a newly filed case may have substantial connections to one that arose during the judge’s prior tenure. In those cases, if a judge becomes aware of a relevant connection between a new case involving the County Attorney’s office and a prior case during his/her tenure as County Attorney, the judge must fully disclose the connection between the cases. Disclosure in this circumstance is mandated in lieu of outright disqualification. Consequently, if the judge is not legally permitted to fully disclose (for example, if disclosure would breach the judge’s obligations of confidentiality), the judge must disqualify him/herself without the possibility of remittal.
Enclosed, for your convenience, are Opinions 16-14; 14-07; 13-175 and 99-11 which address this matter.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Div., First Dep’t (Ret.)
Committee Co Chair
Margaret T. Walsh
Family Court Judge
Acting Justice, Supreme Court