Opinion 05-49

June 9, 2005

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

Digest:         A judge whose confidential secretary is in a personal relationship with an attorney may preside over the attorney’s or the firm’s cases only if upon disclosure there is consent by the parties and attorneys, and the secretary is insulated from such matters.

Rule:            22 NYCRR 100.3(E)(1); 100.3(F); Opinions 98-25 (Vol. XVI).

Opinion:

         The inquiring judge’s confidential secretary – recently appointed to the position after working in a local law firm for over a decade – is involved in a personal relationship with an attorney at that firm. Attorneys in that law firm appear regularly before the judge. The judge seeks the Committee’s guidance regarding his or her obligation, if any, to disclose the relationship and/or disqualify himself or herself in matters involving the firm.

         At issue is the application of section 100.3(E)(1) of the Rules Governing Judicial Conduct which provides for judicial disqualification in circumstances where the judge’s impartiality might reasonably be questioned (see, 22 NYCRR 100.3[E] [1]).

         Applying that standard, the Committee has held that a judge may preside in cases in which the judge’s law clerk’s spouse, who is a private attorney, or other attorneys in the spouse’s law firm, appear, provided that the judge discloses the relationship, obtains the consent of the parties to preside, and insulates the law clerk from participation in the case (see, Opinion 98-25 [Vol. XVI]). We went on to say, “However, although it can not be said that as a matter of law, ‘the judge’s impartiality might reasonably be questioned’ in all such matters, thus mandating recusal, the Committee believes it might be wiser for the judge to exercise discretion in favor of disqualification in matters involving the law clerk’s spouse.”

         We do not believe there is a basis for distinguishing a law clerk from a confidential secretary in these circumstances. Thus, the Committee concludes that the inquiring judge may preside only if upon disclosure there is consent in accordance with section 100.3(F) of the Rules Governing Judicial Conduct, and the secretary is insulated from any involvement in those matters.