Opinion 11-124

December 8, 2011

Please Note: While it does not affect the outcome of this opinion, we note that Opinion 21-22(A) abolishes our former requirement that, “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification,” a judge must disqualify if a party is appearing without counsel (see id. fn 3).

Digest:         A judge may preside in a proceeding in which his/her administrative judge’s spouse appears as an attorney, in the absence of any other disqualifying factor and assuming he/she can be fair and impartial, even if a party or counsel objects. The judge is not required to disclose the attorney’s marital relationship but may do so if he/she wishes without incurring any obligation to disqualify him/herself.

Rules:          Judiciary Law §14; 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 11-127; 10-60; 07-158; 05-152; 98-09 (Vol. XVI); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         Three judges within the same judicial district state that “an attorney who frequently appears before each of us [is] married [to] the [a]dministrative [j]udge for our district.” Although the inquiring judges believe that the administrative judge and his/her attorney spouse have conducted themselves in accord with their professional and ethical obligations, the judges are concerned about a possible appearance of impropriety “given the volatile nature of the matters which we must adjudicate.” The judges ask for guidance on their disclosure and disqualification obligations, if any, when the attorney appears before them.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (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 a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14). For example, a judge must exercise disqualification if he/she has a personal bias or prejudice concerning a party or knows that he/she has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][a][I]; 100.3[E][1][c]; 100.3[E][1][d][iii]).

         The question presented here appears to be a matter of first impression. The inquiry reveals no direct connection, whether social, financial, or otherwise, between the inquiring judges and the attorney who appears before them. The inquiring judges believe that they can be fair and impartial and that there is, in fact, no impropriety based on their professional relationship with the attorney’s spouse, who is their district administrative judge. However, the inquiring judges are concerned that some attorneys or litigants who appear in their court might argue that this indirect relationship creates an appearance of impropriety.

         According to the Unified Court System’s website, administrative judges generally are “responsible for the on-site management of the trial courts,” and district administrative judges are more specifically “responsible for supervising all courts and agencies” within a judicial district (see http://www.nycourts.gov/admin/directory.shtml [Jan. 3, 2012]). Among other managerial duties, a district administrative judge is responsible for judicial assignments within his/her judicial district.

         The Committee notes that, regardless of the specific details of court administration, the inquiring judges are themselves duly elected or appointed public officials who are vested with their own independent authority and obligations as judicial officers. The Rules Governing Judicial Conduct require all judges to personally observe high standards of conduct “so that the integrity and independence of the judiciary will be preserved” (22 NYCRR 100.1 [“An independent and honorable judiciary is indispensable to justice in our society”]). It is thus critically important to protect and preserve both the fact and the appearance of the independence of every judge.

         Notwithstanding the novelty of the question, two prior Opinions provide some useful guidance. In Opinion 98-09 (Vol. XVI), the Committee advised that the sibling relationship between an attorney and the chief judge of a city court does not bar the attorney sibling’s practice of law before the other city court judges. Thus, implicitly, the chief judge’s administrative responsibilities as “the assigning and scheduling judge for the Court” did not create a conflict for the other City Court Judges (id.). More recently, the Committee advised that the judges within a judicial district are not disqualified from presiding over matters involving a “landlord who owns the building that houses the administrative offices of the judicial district” and are also not required to disclose the landlord/tenant relationship (Opinion 10-60). In this Opinion, the Committee noted that, although the Office of Court Administration “administers all the courts in New York State, including the inquiring judges’ court,” the landlord-tenant relationship “does not create any appearance of impropriety that could cause someone to reasonably question the [inquiring] judges’ ability to be impartial” (id.). In both instances, the Committee declined to impute a conflict on the administrative level to all judges within the same administrative unit.

         Likewise, the Committee concludes that here the marital relationship of the inquiring judges’ district administrative judge is sufficiently remote from the inquiring judges that it does not, in and of itself, create any reasonable appearance of impropriety for them and thus neither disclosure nor disqualification is required. In reaching this conclusion, the Committee is mindful that each judge must search his or her conscience and determine whether recusal is the appropriate course to be followed. Where disqualification is not mandatory, however, it remains a “discretionary decision within the personal conscience of the court” (People v. Moreno, 70 NY2d 403, 405 [1987]).  

         The judges may, of course, choose to disclose the relationship if they wish to do so. Unlike situations in which the Committee has mandated disclosure, the purely prophylactic disclosure contemplated here will not require the judges’ disqualification when a party is unrepresented (compare Opinion 11-127 with Opinions 07-158; 05-152). And, even if a party or counsel objects, the judge retains the discretion to preside under these circumstances (cf. People v Moreno, supra).

         Therefore, in the Committee's view, any one of the inquiring judges may preside in a proceeding in which their administrative judge's spouse appears as an attorney, in the absence of any other factor that would warrant disqualification and assuming he/she can be impartial, and need not disclose the relationship to the parties or counsel.