Opinion 11-151

January 26, 2012

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

Please Note: 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 full-time judge, who presides in criminal cases and whose law clerk’s spouse is an assistant district attorney in the same county where the judge presides, must disqualify him/herself, subject to remittal when the spouse has had any involvement in a case. If the judge’s disqualification is remitted and the judge is willing to preside, he/she must insulate the law clerk from the case. Remittal is not available if a party appears without representation.

Rules:          Criminal Procedure Law §450.60(3); 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 11-139; 11-131; 08-126; Joint Opinions 07-114/07-120; 97-130/97-147 (Vol. XVI); Opinion 88-140 (Vol. III).

Opinion:

         A full-time judge who presides over many felony cases and hears some appeals from local courts asks about his/her ethical obligations should the judge’s law clerk’s spouse accept a position as a full-time assistant district attorney in the same county where the judge presides. The judge advises that the law clerk’s spouse would carry a general felony caseload and supervise certain misdemeanor cases prosecuted in local courts in the county. The judge states the law clerk’s spouse’s felony cases will be assigned to other judges, and the judge believes that the spouse would not supervise other assistant district attorneys who prosecute felonies.

         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]). In particular, a judge must not allow his/her family, social 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 in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that where a county court judge’s law clerk is married to an assistant public defender, the judge is not required to disqualify him/herself in every case where the public defender’s office appears (see Opinion 88-140 [Vol. III]).¹ However, at least when the law clerk’s spouse appears, if the judge can be impartial, the judge must disqualify him/herself, subject to remittal, and must completely insulate the judge’s law clerk from the case if he/she is willing to preside following a remittal pursuant to 22 NYCRR 100.3(F) (see id.).

         The Committee also has previously advised that where a judge’s law clerk’s spouse supervises other attorneys in a public law office, the judge must disqualify him/herself, subject to remittal, when the law clerk’s spouse appears and when other attorneys from the office appear who are subject to the spouse’s direction and supervision and must insulate the law clerk from all cases in which the spouse’s public law office appears (see Opinion 08-126).

         The judge in the present inquiry has advised that the law clerk’s spouse would not appear in the judge’s court and that the law clerk’s spouse would not supervise other assistant district attorneys who prosecute felonies. Nevertheless, because the law clerk’s spouse would supervise the prosecution of certain cases in the local courts, and criminal appeals from local criminal courts located outside New York City must be taken to the County Court (Criminal Procedure Law §450.60[3]), the inquiring judge would have to disqualify him/herself, subject to remittal,² in any case that is appealed from a local court that the law clerk’s spouse supervised in the local court (cf. Opinion 08-126) as well as in any other case prosecuted in the inquiring judge’s court in which the law clerk’s spouse had any involvement (cf. Opinion 11-131; Joint Opinion 97-130/97-147 [XVI]).

         The judge may determine whether the law clerk’s spouse has had any involvement in a particular case by inquiring on the record each time the District Attorney’s office appears in the judge’s court. Or, the judge may direct the District Attorney, in a writing applicable to all cases, to advise the judge whenever the law clerk’s spouse has had any involvement in a particular case that will come before the judge (see Opinion 11-139). One way for the District Attorney’s office to differentiate cases in which the law clerk’s spouse has had any involvement would be to “red flag” those files in some obvious manner. This latter procedure would be less burdensome for the judge and not inconvenient for the District Attorney and his/her staff.

         The judge may also wish to direct the District Attorney to ensure that the law clerk’s spouse avoids even casual conversations with other members of the District Attorney’s staff about cases that will come before the judge. This will further serve to protect the judge from inadvertently presiding over cases in which the law clerk’s spouse had some involvement.

         If the judge’s disqualification is remitted and the judge will preside in a case in which the law clerk’s spouse was involved, the judge must insulate his/her law clerk from the case (see Opinion 88-140 [Vol. III]).

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           ¹However, where the judge’s law clerk’s spouse is a private practitioner, the spouse and his/her partners and associates have a financial relationship that warrants disclosure and consent by the parties for the judge’s continued participation in a case both when the law clerk’s spouse appears in the judge’s court as well as when the law clerk’s spouse’s partners and associates appear. The judge must also insulate his/her law clerk from all cases involving the private firm (see Opinion 08-126).

         ²A judge who is disqualified may disclose on the record the basis of the disqualification and if the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, agree on the record that the judge should not be disqualified, and the judge can be impartial and is willing to participate, the judge may preside (see 22 NYCRR 100.3[F]). However, remittal is not available if a party appears without representation (see Joint Opinion 07-114/07-120).