Opinion 06-169

December 7, 2006

Digest:         Under the circumstances, where a judge has been asked by the District Attorney’s office to cooperate in a criminal investigation of a post-nuptial agreement which is the subject of a divorce proceeding before the judge, the judge should exercise recusal.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1).

Opinion:

         The inquiring judge who is “presiding over a criminal and matrimonial proceeding in the Integrated Domestic Violence part” has been contacted by the District Attorney’s office and asked to cooperate in a criminal investigation involving a post-nuptial agreement which “may have been acknowledged in a manner which violates the penal law.” (The judge originally learned of the agreement in an earlier matrimonial proceeding, which was discontinued without prejudice.) This same agreement is the subject of the current divorce proceeding. The judge asks whether recusal is required under these circumstances.

         In our opinion, the judge should exercise recusal. Otherwise, he/she will be forced to render a judgment with respect to the agreement after having acquired extra-judicial knowledge of possible criminality involving that agreement. This could create an appearance that extra-judicial considerations influenced the judgment and could thus call into question the judge’s independence and impartiality. The judge, therefore, should not continue to preside. 22 NYCRR 100.2(A); 100.3(E)(1).