Opinion 01-121

March 7, 2002

Digest:         A judge should exercise recusal where, subsequent to the appointment of a referee to preside in a contested proceeding, the referee, who is a lawyer, was retained by the judge’s spouse to represent the spouse in seeking reinstatement to the bar.

Rules:          22 NYCRR 100.3(E)(1); 100.3(F).

Opinion:

         The inquiring judge’s spouse has retained a lawyer for the purpose of seeking reinstatement to the bar. Some years prior to retaining the lawyer, the inquiring judge had appointed that lawyer as a referee in a contested proceeding. The hearing in that matter has been concluded and there is now before the judge a proceeding to confirm the referee’s report and a proceeding with respect to the referee’s fee application.

         The judge states that he/she is “inclined to recuse myself from the fee proceeding,” and seeks the Committee’s advice.

         The Committee concurs with the judge that passing upon the fee application might create an appearance of impropriety in that such a proceeding, under the circumstances, is one “in which the judge’s impartiality might reasonably be questioned,” 22 NYCRR 100.3(E)(1). However, we also believe that the same considerations apply, although perhaps not as starkly, with respect to the confirmation application, which presumably involves judicial evaluation of the conclusions and recommendations of the referee.

         Under these circumstances, we believe there should be recusal in both proceedings. However, we note that the basis of the recusal is not one where disqualification is absolute and not subject to remittal. Remittal, therefore, is possible under section 100.3(F) of the Rules Governing Judicial Conduct, provided that there is strict adherence to the procedures and conditions specified in that section.