Opinion 06-95

September 7, 2006

Digest:         Recusal is not required solely because the Assistant District Attorney who appears before a judge is also affiliated with a law firm that represents the judge’s spouse in the pending matrimonial action between the judge and his/her spouse. The judge may continue to preside provided that the Assistant District Attorney has no involvement whatsoever in the matrimonial action, and the judge feels that he/she can be impartial.

Rule:            22 NYCRR 100.3(E)(1).

Opinion:

         The inquiring judge informs the Committee that the Assistant District Attorney who appears before the judge’s court also “works for the office of the attorney that represents” the judge’s spouse in the pending divorce action between the judge and his/her spouse. The judge has asked the District Attorney to replace the current assistant with another until the matrimonial matter is concluded, but the District Attorney has declined to do so. The inquirer seeks the Committee’s advice.

         In the opinion of the Committee, the affiliation of the prosecutor with the law firm representing the judge’s spouse in the pending matrimonial matter does not, without more, require recusal. This fact alone does not render every proceeding in which the Assistant District Attorney appears before the judge one in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Thus, the judge may preside provided that the Assistant District Attorney has had no participation in the matrimonial matter and the judge feels that he/she can be impartial notwithstanding the prosecutor’s affiliation with the law firm.

         Our view is based on the assumption that the prosecutor is not in any way involved in the matrimonial action. If the Assistant District Attorney has had any involvement in the matrimonial action, however slight, the judge should recuse.

         In any event, the judge should disclose the circumstances to all parties in cases where the Assistant District Attorney appears, as long as the matrimonial action is pending.

         Finally, the judge may wish to consider whether, under the Code of Professional Responsibility, there might be a possible conflict of interest or an appearance of such a conflict on the part of the Assistant District Attorney in view of the situation presented, i.e., appearing as prosecutor before the judge and therefore as a public official in a law enforcement capacity, and concurrently working for the law firm that represents the judge’s spouse in a private, personal matter where the judge is the adversarial party. We express no views whatsoever in that regard, but merely raise it for possible consideration by the judge.