Opinion 25-113

September 10, 2025

Digest:  A part-time attorney judge who represents a litigant against the county, where the county’s representation has been outsourced to a private law firm, may continue to preside over unrelated matters in which the County Attorney’s office appears.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.6(B)(2)-(4); Opinions 20-48; 09-123/09-143; 08-178; 93-73; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          A part-time attorney judge represents a plaintiff in a personal injury action against the county.  The County Attorney’s office is not representing the county but has outsourced the case to a private law firm.  The judge asks whether he/she may continue to preside in cases where the County Attorney’s office appears in the judge’s court.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must therefore disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).  Although a judge’s judicial duties “take precedence” over all of the judge’s other activities (22 NYCRR 100.3[A]), a part-time judge may accept outside employment, including the practice of law, subject to certain limitations (see e.g. 22 NYCRR 100.6[B][2]-[4]).  For example, a part-time judge’s outside employment must be compatible with judicial office and must “not conflict or interfere with the proper performance of judicial duties” (22 NYCRR 100.6[B][4]).

          We have advised that a part-time attorney judge may appear as defense counsel in cases that are prosecuted by the same assistant district attorney who serves as the prosecutor in the judge’s own court (see Opinions 20-48; 09-123/09-143; 08-178; 93-73).  In Opinion 93-73, we stated:

It is a common practice for justices who are permitted to practice law to be adversarial in their private practices against district attorney’s offices, whether it be in local courts presided over by non-attorney justices, county courts, supreme courts or appellate courts, and such practice clearly is permitted without the attorney-justice having to recuse himself or herself from presiding over matters involving the District Attorney’s Office in his or her own jurisdiction.

However, if the inquiring justice, for any reason, has a personal bias or prejudice concerning the district attorney’s office, or if he or she is of the opinion that his or her impartiality reasonably might be questioned in the particular circumstances, then he or she must recuse himself or herself from matters involving that party, be it the district attorney’s office or any other party.

          The present facts, where the county has retained an outside law firm to defend itself against the judge’s client’s personal injury lawsuit, do not warrant a different result.  We therefore conclude this judge may continue to preside in unrelated matters in which the County Attorney’s office appears, notwithstanding the judge’s representation of a client against the county, provided the judge can be fair and impartial.  The decision is left to the judge’s sole discretion after considering all relevant factors (cf. People v Moreno, 70 NY2d 403, 405 [1987] [“This discretionary decision is within the personal conscience of the court”]). 

          For completeness, we also note if the judge finds it necessary to disqualify so frequently that the judge’s law practice interferes with his/her performance of judicial duties, then the judge must choose between the positions.