Opinion 05-151

January 26, 2006

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

Digest:         Where a judge has hired as the judge’s personal secretary the spouse of an attorney who practices in the judge’s court: (1) the judge should disclose the relationship and offer to recuse, subject to remittal should the attorney appear before the judge, (2) the judge should not assign the attorney to any law guardian or assigned counsel position; and (3) it is permissible for the other judges of the court to preside in matters involving the spouse of the inquirer’s personal secretary and to make appointments of the attorney.

Rules:          22 NYCRR 100.2(C); 100.3(E)(1); 100.3(F) Opinions 90-130 (Vol. VI); 96-85 (Vol. XIV); 96-86 (Vol. XIV), 97-78 (Vol. XVI) and 95-166 (Vol. XVII).

Opinion:

         A newly-elected Family Court judge has appointed as the judge’s personal secretary the spouse of an attorney who practices in the Family Court. The judge asked this Committee three questions: (1) may the attorney appear before the judge? (2) may the judge assign the attorney to serve as a law guardian or assigned counsel on cases that come before the judge? (3) may the attorney appear before the other judges of the Court?

         Concerning the first question, if the judge harbors any doubts about his/her own ability to be impartial due to his/her professional relationship with the personal secretary and the attorney, then he/she should not preside in any matter in which the attorney appears. 22 NYCRR 100.3(E)(1). However, if the judge concludes that he/she can be fair and impartial, the judge should disclose that the attorney’s spouse is employed as the judge’s personal secretary and should only continue if there is consent of all the parties and their attorneys placed on the record. 22 NYCRR 100.3(F). The judge must also completely insulate the personal secretary from any contact with the case. Opinion 96-85 (Vol. XIV).

         As to the second inquiry, it is well-established that a judge should not lend the prestige of his or her office to advance the interests of others, nor shall any judge convey or permit others to convey the impression that they are in a position to influence his or her decisions. 22 NYCRR 100.2(C). Therefore, the Committee believes that, although counsel may be eminently qualified, appointing an attorney whose spouse is the judge’s personally appointed secretary would create an appearance of impropriety. See, Opinions 90-130 (Vol. VI); 96-86 (Vol. XIV); 97-98 (Vol. XV). Thus, the judge should not select the attorney for any appointments.

         Finally, the Committee finds no ethical impediment to other Family Court judges appointing the spouse/attorney to any appropriate appointed position, or otherwise presiding in matters in which the attorney appears. Opinion 96-166 (Vol. XVII).