Opinion 25-13

February 6, 2025

Digest:   Where a part-time judge works as a staff attorney in the legal unit of a not-for-profit agency that provides a range of services to individuals in need, including medical, educational and other non-legal services which are excluded from the legal unit’s conflicts database, the judge may preside in matters where recipients of the agency’s non-legal services appear before him/her.

Rules:    22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(b)(i)-(ii); People v Moreno, 70 NY2d 403 (1987).

Opinion:

          The inquiring part-time judge works as a staff attorney for a not-for-profit agency that provides a wide range of services to individuals in the community.  The judge works specifically and exclusively in the non-profit agency’s legal unit, representing domestic violence victims and indigent clients.  However, the agency also offers non-legal services to individuals in need, such as mental health counseling services, medications, and education services.  These records are confidential and are not part of the legal unit’s conflicts check system.  The judge asks about his/her obligations on learning that a litigant appearing before him/her is a non-legal “client” of the judge’s extra-judicial employer, who receives only non-legal services from the agency.

          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 disqualify him/herself whenever the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge knows that the judge or his/her associate served as a lawyer in the matter (22 NYCRR 100.3[E][1][b][i]-[ii]).  Where disqualification is not mandatory, however, the judge is the sole arbiter of recusal, a discretionary decision within the personal conscience of the court (see People v Moreno, 70 NY2d 403, 405 [1987]). 

          As described, this judge is able to identify the agency’s legal clients and disqualify him/herself when they appear.  The “clients” the judge may be unable to identify are recipients of strictly non-legal services from other units within the agency.  Significantly, neither the judge nor the agency has any attorney-client relationship with such individuals.  Where a litigant appearing before the judge is not a current or recent former client of the legal unit, and the judge has had no dealings with him/her in the course of his/her extra-judicial employment, we conclude that the judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1] [emphasis added]), simply because the individual received non-legal services from the agency.

          In our view, the judge has no duty to inquire whether a litigant appearing before him/her has received non-legal services from the agency, nor is disqualification mandated if the judge becomes aware of such connection.  Rather, provided the judge can be fair and impartial, he/she may preside in matters where the agency’s “non-legal clients” – i.e. recipients of only non-legal services from the agency - appear before him/her.