Opinion 99-80

June 18, 1999

Please Note: In Opinion 20-185, we stated: “Opinions 07-127 and 99-80 say that a judge who performs investigative work for an attorney must disqualify if they ‘recently’ solicited work from the attorney.  We modify these opinions to clarify that the two-year runs from the latest of the three possible dates (date of last work performed, date of final payment, or date on which the judge last solicited work from the attorney).”

Digest:         A part-time judge may serve as a private investigator for attorneys in private practice who have been retained to handle cases for the county Public Defender, provided that: (1) the judge, as private investigator, does not perform services relating to any case within the jurisdiction of judge's court; (2) the judge disqualifies himself or herself (a) in any matter that comes before the judge in which the judge had performed investigative services; (b) in any matter in which an attorney for whom the judge is performing services or from whom the judge has recently solicited work as a private investigator appears in the judge's court, and for a period of two years after the judge has ceased performing services for that attorney.

Rule:           22 NYCRR 100.3(E)(1); 100.6(B)(4);

Opinions 90-1(Vol. V); 91-127 (Vol. VIII);

92-63 (Vol. IX).

Opinion:

        A part-time judge asks whether the judge may accept employment as a private investigator for attorneys who handle cases for the Public Defender's office in the judge's county. The Public Defender appears in the judge's court. The attorneys with whom the Public Defender contracts appear in courts throughout the county. The judge contemplates doing investigative work for attorneys only in matters involving other courts in the county while they are appearing on behalf of the Public Defender.

        The Committee has previously advised that a part-time judge may be employed as a private investigator and, in that capacity, perform services for attorneys. Opinion 90-1 (Vol. V). However, such employment is subject to certain limitations. Thus, the judge should not work on any matters that might fall within the jurisdiction of the judge's court. But, should it happen that a matter upon which the judge worked does come before the judge, there must be disqualification. Opinion 90-1 (Vol. V). The judge should also exercise recusal in the event an attorney who has retained the judge appears in the judge's court. Opinion 91-127 (Vol. VIII). The policy of recusal should continue for a period of at least two years following the cessation of work for that attorney. There should also be recusal if the judge has recently solicited work from the attorney. Opinion 92-63 (Vol. IX).

        Observance of such limitations should, we believe, obviate those situations "in which the judge's impartiality, might reasonably be questioned . . . " 22 NYCRR 100.3(E)(1). If, however, adherence to these guidelines results in frequent recusals that impede the work of the court, the judge should consider either resigning from judicial office or ceasing to work as a private investigator under the circumstances described.