Opinion 11-103

September 15, 2011

Digest:         A judge need not recuse at the request of an attorney whose adversary in an unrelated “very litigious case” is the judge’s attorney spouse, unless the judge cannot remain fair and impartial or has a personal bias against the attorney.

Rules:          22 NYCRR 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(g); Opinions 10-87; 08-178; 92-40 (Vol. IX); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge states that his/her spouse is counsel to a political subdivision and that an attorney who is the judge’s spouse’s adversary in an unrelated action that is pending in a different court also represents a party in a dispute between certain non-governmental parties that is pending in the judge’s court. The judge further advises that the attorney who is the spouse’s adversary has asked the judge to have the case re-assigned to another judge “for obvious reasons." The inquiring judge asks whether disqualification is required under the circumstances.

         A judge 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]) and must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Moreover, a judge must also disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that where neither the Rules Governing Judicial Conduct nor the Committee’s prior Opinions mandate disqualification, a trial judge is ordinarily the sole arbiter of recusal (see Opinion 10-87). In such circumstances, the decision whether to exercise recusal is within the judge’s discretion once the judge searches his/her personal conscience (see Opinion 10-87; People v Moreno, 70 NY2d 403 [1987]).

         In Opinion 92-40 (Vol. IX), the Committee advised that a part-time judge who practices law need not disqualify him/herself from a criminal proceeding where the defendant is represented by an attorney who is an adversary to the judge in an unrelated civil action in another court (see Opinion 92-40 [Vol. IX]). The Committee has also advised that a part-time judge may appear as defense counsel in a criminal case prosecuted by the District Attorney’s Office, and such representation does not automatically disqualify the judge from presiding over other matters in which the District Attorney’s Office appears, as long as the judge determines that he/she can be fair and impartial (see Opinion 08-178).

         Here, the attorney currently appearing before the judge is the legal adversary of the judge’s spouse in an unrelated matter before a different judge, and there is no allegation that the inquiring judge has exhibited any bias, or any prohibited interest or prejudice concerning any party or subject matter currently before the judge (see generally 22 NYCRR 100.3[E][1][a]-[g]). Therefore, the judge need not disqualify him/herself, unless he/she cannot be fair and impartial or is personally biased against the attorney (see 22 NYCRR 100.3[E][1]; Opinion 10-87).