Opinion 08-126

June 3-4, 2009

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

Digest:         (1) A judge must disqualify him/herself when the judge’s law clerk’s spouse or the spouse’s partners or associates appear in the judge’s court, subject to remittal, and must insulate the law clerk from all cases in which the spouse’s law firm appears. (2) A judge also must disqualify him/herself, subject to remittal, when the judge’s law clerk’s spouse is the head of a public law firm, such as the County Attorney or the Director of Legal Services, both when the law clerk’s spouse appears and when other attorneys from the office appear who are subject to the direction and supervision of the spouse, and must insulate the law clerk from all cases in which the spouse’s public law office appears. (3) A judge whose law clerk holds a position at salary grade JG 24 or above may not appoint the law clerk’s spouse to a position governed by Part 36 of the Rules of the Chief Judge, but may appoint the law clerk’s spouse’s partners and associates to such positions so long as the law clerk’s spouse will not share in the fees earned through such appointments.

Rules:          22 NYCRR 36.2(c)(3); 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 05-151; 05-111; 05-49; 03-30; 99-35 (Vol. XVII); 98-25 (Vol. XVI).

Opinion:

           A judge asks whether he/she may preside when the judge’s law secretary’s spouse who is an attorney engaged in private practice appears in the judge’s court. The judge also asks whether he/she is disqualified from presiding when another attorney from the law secretary’s spouse’s firm appears in the judge’s court.

         A judge must avoid impropriety and even the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has considered whether a judge is disqualified from presiding when an attorney who appears before the judge is employed by the same law office as the judge’s law clerk’s¹ spouse. In Opinion 99-35 (Vol. XVII), where a judge’s law clerk’s spouse was married to the County Attorney, the Committee advised that a judge need not disqualify him/herself based solely on his/her law clerk’s familial relationship to an attorney appearing in the court. However, the Committee indicated that the judge should disclose the relationship to all parties and their attorneys both when the County Attorney him/herself appears and when his/her subordinates appear, and must insulate the law clerk from participating in the case (see id.). And, where the judge’s principal court attorney’s spouse is a director of a legal services corporation whose attorneys appear before the judge, the Committee advised that the judge is not disqualified from presiding in legal services corporation cases or required to disclose his/her court attorney’s relationship to the director (see Opinion 03-30) unless the court attorney’s spouse gave advice in, monitored, or signed off on a particular case. Then, the judge must disclose the court attorney’s relationship to the director, obtain the consent of the parties to preside, and insulate the court attorney from the case (see id.).

         The Committee also has considered the circumstance where a law clerk’s or personal secretary’s spouse is engaged in the private practice of law and when the judge’s personal secretary is in a personal relationship with an attorney engaged in the private practice of law. Because of the financial relationship among partners and associates in a private law firm, in these cases the Committee advised that a judge must disclose his/her law clerk’s or personal secretary’s relationship to an attorney associated with a private law firm when the spouse or “significant other” appears and when the spouse’s or “significant other’s” law partners or associates appear, and may preside only upon the consent of all parties and their attorneys (see Opinions 05-151; 05-49; 98-25 [Vol. XVI]). The judge also must insulate his/her law clerk from participation in all cases involving the private law firm (see id.).

         The Committee is now of the view, however, that where a law clerk’s spouse is an attorney who practices in the judge’s court, mere disclosure is not sufficient when either the related attorney or his/her partners or associates appear. Rather, the judge must disqualify him/herself, subject to remittal. Therefore, the judge may preside in such cases only where the judge discloses on the record the basis of his/her disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree in writing or on the record that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate (see 22 NYCRR 100.3[F]). In addition, the judge must insulate his/her law clerk from any cases involving his/her spouse’s law firm. Accordingly, Opinions 05-151 [personal secretary’s spouse is an attorney], 05-49 [confidential secretary in personal relationship with an attorney] and 98-25 (Vol. XVI) [law clerk’s spouse is an attorney] are modified to require disqualification, subject to remittal, when a law clerk’s or personal secretary’s spouse or personal secretary’s “significant other” is an attorney who appears in the judge’s court or when that attorney’s partners or associates appear in the judge’s court.

         As the law secretary who is the subject of the present inquiry is married to an attorney in a four partner/four associate law firm, the inquiring judge is disqualified, subject to remittal, whenever the law firm represents a party and must insulate his/her law clerk from all such cases. In addition, assuming the judge’s law clerk holds a position at salary grade JG24 or above, the judge may not appoint the law clerk’s spouse to any position governed by Part 36 of the Rules of the Chief Judge (see 22 NYCRR 36.2[c][3]). The judge may, however, appoint the law clerk’s spouse’s partners and associates to positions governed by Part 36 so long as the law clerk’s spouse will not share in the fees earned through such appointments (see Opinion 05-111).

         In light of the foregoing, the Committee also is now of the view that where a judge’s law clerk’s spouse is the director or head of a public law office such as the County Attorney or the Director of Legal Services, the judge must disqualify him/herself both when the law clerk’s spouse appears as well as when any other attorney from the law clerk’s spouse’s office appears who is subject to the spouse’s supervision, subject to remittal, and must insulate the law clerk from all such cases. Therefore, Opinions 99-35 (Vol. XVII) and 03-30 are overruled.

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             ¹ The Committee uses the terms “law clerk” and “law secretary” interchangeably.