Opinion: 99-108

September 14, 1999

Digest: A Court of Claims judge is not disqualified from presiding over cases where (1) an expert witness had been a defendant in a matrimonial case in which the plaintiff had been represented by the judge's law clerk; (2) an expert witness is owed money for services rendered to clients of the judge's former law firm; (3) a party or witness had faced criminal prosecution on facts related to the civil case before the judge and the judge's spouse is the District Attorney.

Rule:  22 NYCRR 100.2; 100.3(E)(1);
          Opinions 95-67 (Vol. XIII); 93-132 (Volume XI);
          90-146 (Vol. VI).


            A Court of Claims judge submits several inquiries. Two of them concern the propriety of presiding over matters in which witnesses have some connection with the former law practices of the judge and the judge's law clerk. The third inquiry involves the judge's spouse.

            The first inquiry concerns the fact that an expert witness often used by the State, was a defendant in a matrimonial action in which the plaintiff was represented by the judge's law clerk. We are of the opinion that since the judge, and not a jury, will be assessing credibility it is necessary for the judge to disclose the fact of the prior representation, but the judge is not disqualified under section 100.3(E)(1) of the Rules Governing Judicial Conduct. In order to avoid any appearance of impropriety, the judge should insulate the law clerk from involvement in the matter. Opinions 95-67 (Vol. XIII); 93-132 (Volume XI); 90-146 Vol. VI). A suggested period of disclosure and insulation is two-years from the law clerk's representation.

            The second inquiry concerns an expert witness who now is a frequent witness on the side of claimants in matters before the judge. The expert had been used by the judge's law firm in a particular matter at a time when the judge was a partner. There is an outstanding bill for the expert's services which remains partially unpaid by the judge's former clients.

            Since there remains a financial debt owing to the witness, even though it is the obligation of the judge's former clients, it would be prudent to advise the attorneys of the situation. But the judge may preside over matters involving the expert. Disclosure should be made until the bill is paid.

            The third inquiry concerns the fact that the judge's spouse is the District Attorney and on occasion a civil matter will involve a circumstance where a resolved criminal matter (e.g. traffic ticket) will relate to the facts of the civil case. In this circumstance the Committee sees no conflict or appearance of impropriety under section 100.2 of the Rules since the District Attorney's office is no longer involved and presumably the concluded matter's impact on the civil matter can be adequately addressed by counsel. In the exercise of caution the judge may wish to advise counsel of the employment of the judge's spouse when a concluded criminal matter is somehow brought into the case before the judge. But, only if the District Attorney's office becomes directly involved in the civil matter would disclosure be mandated.