Opinion 05-152

January 26, 2006

Digest:         (1) A Family Court judge should disclose his/her spouse’s employment by a local service provider for the court and (a) recuse upon request, if the spouse was involved in a matter assigned to the judge; (b) if a litigant is pro se the judge should recuse even if there is no request to do so; (c) should disqualify him/herself if the spouse is likely to be a material witness in a proceeding; (d) take affirmative measures to avoid having his/her spouse’s agency assigned to assess matters that are ordered by him/her, directly or indirectly, when it is likely that the matters the spouse is assigned to would be involved in proceedings.

Rules:          22 NYCRR 100.2(B), (C); 100.3(E)(1)(d)(iv); Opinions 04-101; .98-138 (Vol. XVII).

Opinion:

         A Family Court judge, in a large urban area, inquires whether there are any ethical obligations he/she has due to the spouse’s employment by a local charity. The judge advises that his/her spouse is employed by a charity as one of two intake coordinators responsible for making behavioral health referrals for individuals with matters pending in Family Court. The spouse’s duties include an initial assessment of the clients’ needs and their appropriateness for the agency’s services. The assessment process also requires: collecting information about the client, referrals to other agencies, securing appointments for clients with clinicians, assistance with insurance authorization, information gathering, and reporting. Once the judge’s spouse refers the client to an appropriate counselor or service he/she has no further contact with that individual.

         Litigants and family members involved in Family Court matters are often referred to social services and a service provider prior to appearing in court. In addition, the County Department of Social Services upon directive of the court will provide litigants or family members with a list of agencies and/or providers which may include the agency that employs the judge’s spouse. Direct referrals made by the judge do not include the section of the agency where his/her spouse is assigned. The judge further advises that there have been times when an individual appearing before him/her was referred to the spouse’s agency and section, where neither the judge nor the screener knew each other’s identity.

The following sections of the Rules Governing Judicial Conduct provide:

22 NYCRR 100.2(B):

A judge shall not allow family . . . or other relationships to influence the judge’s judicial conduct or judgment.

22 NYCRR 100.2(C):

A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge . . .

22 NYCRR 100.3(E)(1)(d)(iv):

A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including, but not limited to instances where the judge knows that the . . . judge’s spouse . . . is likely to be a material witness in the proceeding.

         It is clear, based on what we understand to be a common practice throughout the state, that the initial assessments referred to by the inquiring judge and any final reports completed by an agency are likely to be utilized by the court, at some point in proceedings, as a tool to help resolve pending matters. Additionally, along with the factual information supplied in the assessment process, it is just as likely that the litigant’s cooperation or lack of cooperation in the assessment process may also become an issue in the ultimate disposition of matters before the court.

         Under the circumstances presented, the Committee concludes that the judge should disclose his/her spouse’s employment by a local charitable service provider for the court and should recuse even if there is no request to do so if the litigant is appearing pro se. Opinions 04-101, 98-138 (Vol. XVII); 22 NYCRR 100.2(B), 100.2(C). The judge must also disqualify himself/herself if the spouse is likely to be a material witness in any proceeding. 22 NYCRR 100.3(E)(1)(d)(iv). Affirmative measures should also be taken by the judge to avoid having social services include his/her spouse’s agency on any lists given to clients assigned to assess matters that are ordered by him or her, if it is likely the spouse will be involved in proceedings, either directly or indirectly, unless procedures can be established to identify in advance the employee who will be involved.