Opinion 07-99
June 7, 2007
Please Note: This opinion has been significantly modified by subsequent opinions.
1. Opinion 12-36 states: “Opinion 07-99 is therefore modified to the extent that it provides that the judge may only preside ‘upon consent of the parties.’” That is, only disclosure is required (not disqualification).
2. This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A Village Justice should disclose his/her former marital relationship when his/her ex-spouse appears before the court as a prosecutor and may preside upon consent of the parties. The Village Justice should recuse, even if there is no objection, when a litigant before the Court appears pro se.
Rules: 22 NYCRR 100.2(B); 100.2(C); 100.3(E)(1); 100.3(F); Opinion 05-152.
Opinion:
A newly-elected Village Justice inquires regarding his/her obligation to consider recusal when his/her ex-spouse appears as a prosecutor in his/her courtroom. The inquirer explains that he/she is on good terms with his/her ex-spouse and that all financial obligations arising out of the divorce have been discharged.
The Rules Governing Judicial Conduct provide that a “judge shall not allow family . . . or other relationships to influence the judge’s judicial conduct or judgment.” 22 NYCRR 100.2(B). Similarly, the Rules also state that a judge “shall not...convey or permit others to convey the impression that they are in a special position to influence the judge.” 22 NYCRR 100.2(C). Finally, the Rules provide that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . .” 22 NYCRR 100.3(E)(1).
Here, for the ex-spouse to appear as an attorney in the judge’s court risks creating the appearance that the judge may be influenced by the former marital relationship. 22 NYCRR 100.2(B); 100.2(C). Accordingly, this Committee concludes that under the circumstances presented, the judge should (i) disclose the relationship whenever the ex-spouse appears before the court, and continue to preside over the matter only upon consent of the parties and (ii) recuse in all cases where one of the other parties is appearing pro se. 22 NYCRR 100.2(B); 100.3(E)(1); 100.3(F); Opinion 05-152.