Opinion 08-200

December 4, 2008

Digest:         A judge whose spouse is an associate who will handle civil matters for an assistant public defender’s private law practice need not disqualify him/herself or disclose his/her spouse’s professional association when the assistant public defender appears in that capacity in the judge’s court.

Rules:       22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F). Opinions 06-111; 95-35 (Vol. XIII)

Opinion:

         A part-time judge’s spouse is considering employment in the law offices of an attorney who serves as an assistant public defender. However, according to the judge, his/her spouse would only be involved in civil cases and would not participate in any of the attorney’s public defender cases. The judge further advises that the attorney does not normally appear before the judge as an assistant public defender because the judge is not assigned to the criminal part of the court. Nevertheless, the judge sometimes does preside in criminal matters when his/her co-judge is unavailable to do so. The judge asks whether he/she may preside when the attorney appears before him/her as an assistant public defender.

         A judge must avoid impropriety and 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 not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including where the judge knows that his/her spouse is acting as a lawyer in a proceeding (see 22 NYCRR 100.3[E][1][e]).

         The Committee previously has advised that a judge must disqualify him/herself when an attorney associated with a law firm that also employs the judge’s sibling or spouse appears in the judge’s court (see Opinion 06-111; 95-35 [Vol. XIII]). Indeed, “[w]here the relationship between the judge and the lawyer is within the second-degree of consanguinity, denoting a more intimate and significant family connection, the Committee has concluded that it is advisable for the judge to recuse where other attorneys in the relative’s law firm appear, subject to remittal” (Opinion 06-111). However, these opinions are not controlling in the present inquiry where the attorney who will employ the judge’s spouse in his/her private law firm appears in the judge’s court as an assistant public defender.

         In Opinions 06-111 and 95-35 (Vol. XIII) the attorneys associated with the judge’s relative in a private law firm appeared in the judge’s court as private practitioners, and the judge’s spouse or other close relative would share in any fee the attorney ultimately earned in the case. With respect to the present inquiry, the Committee assumes that the judge’s spouse will not share in the fees his/her employer earns in his/her capacity as an assistant public defender. Therefore, neither the judge’s spouse (directly) nor the judge (indirectly) will benefit from the spouse’s employer’s appearances. Given that assumption, the judge in the present inquiry need not disqualify him/herself when the attorney who employs the judge’s spouse in his/her private law firm appears in the judge’s court as an assistant public defender. Nor must the judge disclose that the assistant public defender employs his/her spouse when the assistant public defender appears in the judge’s court, as the judge advises that his/her spouse will handle only civil matters, and therefore will have no involvement in the criminal matters over which the judge presides.