Opinion 91-51

April 25, 1991


Digest:         Absent a statutory disqualification, whether a part-time judge should discontinue his or her prior voluntary recusal in matters pertaining to an attorney and the attorney's law firm, is solely within the conscience and discretion of the judge, subject to ethical considerations.


Rules:          Judiciary Law §14, 22 NYCRR §§100.5 (f); 100.1: 100.2; 100.3 (c).


         A part-time judge inquires whether the judge must continue to disqualify himself or herself from sitting in matters in which a particular attorney or his firm is representing a party.

         The judge has disqualified himself or herself for the past four years in cases in which that attorney or his firm appeared because four years ago the judge instituted an action naming the attorney as a defendant in a representative stake-holder  capacity. One year ago, a dispute occurred involving the judge's spouse and the attorney's spouse concerning a transfer of funds.

         The judge now has advised that attorney that the judge intends to preside in a traffic infraction case because the judge feels that the prior disqualification no longer is warranted, and that the judge can render a fair and just determination in any matter in which that attorney or his firm is involved. The attorney strenuously has objected to the judge's decision to forego recusal.

         Conflicts are inevitable in a system which permits judges to practice law during their tenure on the bench, especially in relation to opposing counsel. Section 100.5(f) of the Rules of the Chief Administrator governs those part-time judges who happen also to be practicing lawyers, to guard against those conflicts of interest that inevitably arise when one's adjudicatory responsibilities cross paths with client obligations.

         Here, both the judge and the attorney apparently are active litigators in the same community and the attorney's reasons for the judge's disqualification stem from past associations that might have involved professional antagonism, from which the attorney implies present bias or prejudice of the judge toward him and his firm. These past conflicts do not rise to such a level.

         Section 14 of the Judiciary Law provides in pertinent part:


A judge shall not sit as such in, or take any part in, the decision of an action, claim, matter, motion or proceeding to which he is a party, or in which he has been an attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.

         This is the sole statutory authority in New York for disqualification of a judge. The purpose of Section 14 is to maintain the purity and dignity of the administration of justice and to insure that litigants are entitled to an unbiased, unprejudiced and unpressured finder of facts.

         As a general rule, whether it would be improper to sit in a particular case is a matter confined to the conscience of the particular judge. In the absence of a violation of the above express statutory provisions, alleged bias or prejudice or unworthy motive on the part of a judge, unconnected with an interest in the controversy, will not be a cause for disqualification, unless shown to affect the result. As to alleged impropriety, as distinguished from legal disqualification, the judge himself is the sole arbiter [Johnson v. Hornblass, 93 A.D.2d 732 (1st Dept., 1983)] and is, at best, a matter of personal conscience and discretion [Matter of Estate of Smith, 84 A.D.2d 664, 666 (3d Dept., 1981); Casserella v. Casserella, 65 A.D.2d 614, 615 (2d Dept., 1978); app. dsm’d 46 N.Y.2d 939(1979)].

         In the exercise of that discretion, a judge should be guided by ethical standards. Section 100.1 of the Rules of the Chief Administrator mandates that every judge shall observe the high standards of conduct so that the integrity of the judiciary is maintained. Section 100.2 requires a judge to conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Section 100.3(c) states that a "judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where: 1) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding."

         If, in the observance of these guidelines, and, in good conscience, in the exercise of discretion, the judge believes that his or her feelings toward the attorney or his firm would not prejudice the attorney's client or future clients, recusal is not required.