Aide Backs Judge's Decision Not to Give Up Warhol Case

An aide to a leading New York State appeals judge yesterday defended the judge's decision not to remove himself from a case involving the Andy Warhol Foundation, citing a 1994 advisory opinion that it is not necessary for judges to step aside under some circumstances.

Francis T. Murphy Jr., the presiding justice of the Appellate Division of the State Supreme Court, has been criticized by several legal ethics experts for failing to disclose that the foundation's lead lawyer had investigated him in 1990 on behalf of a gubernatorial committee that recommended his reappointment as presiding justice.

But Justice Murphy's top aide, John W. McConnell, said the 1994 opinion of the Advisory Committee on Judicial Ethics "makes it very clear" that Justice Murphy was not required to remove himself from the Warhol case, or even alert lawyers that he was investigated by the lead lawyer for the Warhol foundation.

The opinion, however, applies specifically to a bar association's judicial screening committee, not the gubneratorial screening committee that had investigated Justice Murphy and recommended his reappointment to the Governor.

According to the opinion, a judge is not required to disqualify himself from hearing cases involving a lawyer who sits on a bar association's screening committee that a judge has appeared before. In addition, a judge is not required to disclose to lawyers in the case the fact that a lawyer may have sat on a bar association screening committee.

In defense of Justice Murphy, Mr. McConnell gave a copy of the judicial ethics committee's September 1994 opinion to a reporter yesterday.