Opinion 11-55

April 28, 2011

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 may provide informal, uncompensated legal advice and assistance to his/her spouse in the selection of, and consultation with, counsel to represent the spouse in a proposed class action or other proceeding against the spouse's employer.

Rules:          22 NYCRR 100.0(I); 100.3(E)(1); 100.3(F); 100.4(G); Opinion 09-46; Joint Opinion 08-171/08-174; Opinions 07-128; 03-129; 99-114 (Vol. XVIII); 99-47 (Vol. XVII).

Opinion:

         A full-time judge asks whether he/she may give uncompensated legal advice to his/her spouse, who is a court employee, regarding the spouse's employment-related claims against the Office of Court Administration. The judge would provide assistance "in the selection of and consultation with counsel to represent the spouse in a proceeding, action or class action."

          A full-time judge shall not practice law, but "may, without compensation, give legal advice to a member of the judge's family" (22 NYCRR 100.4[G]; see also 22 NYCRR 100.0[I] [defining "member of the judge's family"]). This Committee has consistently advised that a full-time judge may, without compensation, give informal legal assistance to a family member in a non-lawyer/client context (see Opinions 09-46; 03-129; 99-114 [Vol. XVIII]). Accordingly, the assistance proposed here is likewise permissible.

         Once the spouse retains an attorney, the judge must disqualify him/herself from all matters involving the attorney and his/her law firm throughout the course of the representation (see 22 NYCRR 100.3[E][1]; Opinion 99-47 [Vol. XVII]). In matters where all parties are represented by counsel, such disqualification is subject to remittal pursuant to the procedures set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[F]). However, remittal is not available if any party is unrepresented, or if the judge does not "fully disclose the fact and nature of the representation" (Joint Opinion 08-171/08-174).

         Once the judge's spouse's representation is concluded and all legal fees have been paid, the judge should disclose the representation for two years thereafter whenever the attorneys who represented his/her spouse appear before the judge, but disqualification is no longer required as long as the judge believes he/she can be fair and impartial (see Opinion 99-47 [Vol. XVII] [attorney who represented the judge's spouse]; see also Joint Opinion 08-171/08-174 [attorney who represented the judge]; Opinion 07-128 [attorney who represented the judge's child]; 22 NYCRR 100.3[E][1]).