Opinion 06-127

October 19, 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 the judge’s court attorney is residing as the guest of a couple, one of whom is an assistant district attorney, and the other a private attorney, the judge may not preside over matters in which either of the hosts appear, unless the judge discloses the relationship, obtains the consent of the parties, and insulates the court attorney from any participation in the case. Under the circumstances, the judge should give serious consideration to simply exercising recusal.

Rules:          22 NYCRR 100.3(E)(1); 100.3(F); Opinions 03-30; 98-25 (Vol. XVI); 97-93 (Vol. XVI); 90-33 (Vol. V).

Opinion:

         The inquiring full-time judge is assigned to preside over criminal cases. The judge states:

[My court attorney] is currently living with a couple on a temporary basis. One spouse works in the District Attorney’s office as an Assistant District Attorney. The other spouse has a private practice that handles criminal cases. My court attorney describes his/her relationship as being very close friends, almost like family, with these two persons. He/she will be living with them until he/she finds other living arrangements in a few months. I do not believe he/she is required to pay any rent or is under any monetary obligations to his/her friends while he/she is living with them.

         The judge seeks the Committee’s advice as to his/her ethical obligation should either of the hosting attorneys appear before the judge; and further, the judge asks what obligations the court attorney might have in this situation.

         In matters involving appearances by a judge’s law clerk’s spouse or other relative, in order to avoid an inference that, by virtue of that relationship, the judge’s impartiality might reasonably be questioned, the Committee has stated that the judge should disclose the relationship on the record and obtain the parties’ consent to preside. 22 NYCRR 100.3(E)(1), 100.3(F); Opinions 03-30, 98-25 (Vol. XVI), 90-33 (Vol. V). Should the parties grant their consent, the law clerk must be insulated from the case. Opinions 03-30, 98-25 (Vol. XVI), 90-33 (Vol. V).

         Here, the court attorney is not a relative of his/her hosts. Nevertheless, the relationship is described as that of “very close friends, almost like family.” The Committee therefore believes that this relationship should be regarded in the same light as a spousal or other family relationship, and thus disclosure, consent, and insulation are required. Further, the judge should instruct the court attorney not to discuss any court matters with his/her hosts.

         Moreover, in this particular instance, there is a present economic relationship between the court attorney and his/her hosts. To the extent that he/she is not paying rent or making any other payment to the couple, he/she is clearly the recipient of an ongoing financial benefit. Under those circumstances, although recusal might not be mandatory, the better course might be for the judge simply to exercise recusal. Opinion 03-30, 98-25 (Vol. XVI), 97-93 (Vol. XVI).