Opinion 02-136

December 5, 2002

Digest:         A judge whose spouse is an architect should exercise recusal in proceedings involving a law firm which has engaged the spouse in a project for the firm. For a two-year period following completion of the project and the satisfaction of all obligations between the parties, the judge should make disclosure of the relationship and, upon objection, exercise recusal.

Rules:          22 NYCRR 100.3(E)(1),(2); 100.3(F).

Opinion:

         The inquiring judge’s spouse is an architect, some of whose projects have involved law firms. Heretofore, none of the lawyers involved in any of the projects has ever appeared before the judge. But, recently, the judge’s spouse has been approached by a law firm about a proposed project, and it appears that two of the lawyers in the firm occasionally appear before the judge. The judge seeks the Committee’s advice in the event the judge’s spouse undertakes such a project.

         In our opinion, should such an arrangement be entered into, the judge should exercise recusal in any matter that comes before him or her involving the law firm or any of its attorneys, for the duration of the project. This period would terminate at the point where there are no longer any obligations remaining between the parties.

         Section 100.3(E)(2) of the Rules Governing Judicial Conduct obligates a judge to “make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse,” 22 NYCRR 100.3(E)(2). The purpose of that rule is to avoid the possibility that a judge might unwittingly create an appearance of impropriety by presiding in a matter in which his or her “impartiality might reasonably be questioned.” 22 NYCRR 100.3(E)(1). And while the spouse might not have an economic interest in any particular case in which the law firm is appearing as the attorneys for a party, he or she does have an economic interest in the economic well-being of the law firm. Under such circumstances we believe that recusal is required, subject to remittal pursuant to section 100.3(F) of the Rules. Further, it is also advisable that for a two-year period following the satisfaction of all obligations between the parties, that the judge make disclosure of the relationship, and exercise recusal should a party object.