Please Note: While the outcome of this opinion is unaffected, see Opinion 21-22(A) and subsequent opinions for updated discussions of the remittal process. To the extent that the last sentence of the fifth paragraph may imply that a separate written agreement is required for remittal, neither Part 100 or the Committee's opinions impose such a requirement. To the contrary, Section 100.3(F) says "The agreement shall be incorporated in the record of the proceeding."

Digest: (1) A newly-appointed judge must resign immediately from the Board of Directors of agencies that appear regularly in the judge's court; (2) Where there had been an initial consultation by the judge's former law partner with one of the parties now before the judge in that matter, there should be recusal by the judge, which recusal is subject to remittal. (3) Under the circumstances presented, the fact that the judge's spouse is an attorney with the County Attorney's office does not require recusal in all cases where the County Attorney's office is appearing, nor is disclosure of the relationship required.
 

Rule:  22 NYCRR 100.3(E)(1)(b)(ii); 100.3(F);
           100.4(C)(3)(a)(i)(ii);
           Opinions 97-39 (Vol. XV); 96-42 (Vol. XIV).
 

Opinion:

            The inquirer is a Family Court judge who has been recently appointed to the position and is a candidate for election to that office. As a result of the judge's recent ascension to the bench, a number of questions have arisen.

            The judge has been on the Board of Directors of "two local agencies regularly utilized by the Family Court which provide mediation, supervised visitation and counseling and psychological assessments . . . for parties engaged in litigation before the [Family] Court . . ." Must the judge resign membership on the Board of Directors of the two agencies?

            It is the Committee's opinion that the judge must resign immediately from the boards of both organizations. Section 100.4(C)(3)(a) of the Rules Governing Judicial Conduct provides that a judge shall not serve as a director of an organization "if it is likely that the organization (1) will be engaged in proceedings that ordinarily would come before the judge, or (2) if the judge is a full-time judge, will be engaged regularly in adversary proceedings in any court. 22 NYCRR 100.4(C)(3)(a)(i), (ii). Based upon the information provided by the judge, it appears that both provisions apply. The judge therefore may not continue to serve as a director or either organization.

            Prior to being appointed, the judge and the judge's spouse practiced law together as partners. During the course of a recent proceeding, the judge was informed that one of the parties had previously had an initial consultation with the judge's spouse about the matter which is now before the judge. There was no further involvement by the law firm and it was never retained to represent the party. The attorneys do not object to the judge's continuing to preside, and wish the judge to do so. The judge asks whether recusal is required.

            Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires a judge to disqualify himself or herself in proceedings in which the judge's impartiality might reasonably be questioned. This encompasses a proceeding where "(b) the judge knows that . . . (ii) a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter." 22 NYCRR 100.3(E)(1)(b)(ii). Notwithstanding the absence of a retainer agreement, the initial consultation could be regarded as the practice of law concerning the matter, and therefore recusal is required. However, recusal on that basis is subject to remittal under section 100.3(F) of the Rules. That is, if the parties and their lawyers "all agree that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate, the judge may participate in the proceeding." 22 NYCRR 100.3(F). The agreement concerning the judge's participation should be in writing and made part of the record.

            Finally, the judge informs the Committee that the judge's spouse, who is closing out the law practice, is becoming a Deputy County Attorney handling personnel, labor and unemployment matters. There will be no appearance by the spouse before the judge or in Family Court. The judge seeks advice as to the general guidelines with respect to proceedings involving the County Attorney's office in light of the spouse's employment.

            It is, of course, axiomatic that the judge's spouse may not appear before the judge. But it is equally prohibited for the judge to preside over any matter in which there had been any involvement whatsoever by the spouse, e.g., providing advice, screening of cases, etc.

            In general, we refer the judge to Opinion 97-39 (Vol. XV) which sets forth the basic guidelines involving appearances by a spouse's employer, where the employer is a large public office. We note that here, as in Opinion 97-39 (Vol. XV), the judge's court is in a large metropolitan county, thus obviating any requirement for disclosure of the relationship in each and every case involving the County's Attorneys office. See also Opinion 96-42 (Vol. XIV).