January 24, 1991
Digest: A judge who was represented as part of a group of judges in federal court by the Attorney General’s office need not recuse himself or herself in a trial prosecuted by an assistant attorney general, if that attorney was not the lawyer who represented the judge in the federal case.
Rules: 22 NYCRR §§100.2; 100.3(c)
A judge who is presiding over a labor law matter prosecuted by the New York State Attorney General’s office, asks if it is proper to preside where the Attorney General’s office represented the judge as part of a group of judges in a different federal action.
Based upon the facts presented we perceive no ethical bar to the judge retaining this case. The representation of the judge as one of a class of judges by the Attorney General’s office does not ethically preclude the judge from presiding over the instant case, provided that the assistant attorney general prosecuting the labor law case is not the same individual who represented the judge in federal court. The judge, however, should recuse himself or herself if the same assistant attorney general appears (22 NYCRR 100.2; 100.3[c]); see also, Advisory Committee on Judicial Ethics, Opinion 90-56, Vol. V). If the labor law case is being handled by another assistant from the Attorney General’s office, the judge may preside over the case.