Opinion 11-57

April 28, 2011

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

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 judge who presides in county court and whose spouse is a special prosecutor in a town court, subject to the district attorney’s supervision, is not disqualified from matters involving the district attorney’s office or matters originating in the town court, as long as the judge’s spouse has not participated in the matter.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); 100.3(F); Opinions 10-05; 07-216; 97-39 (Vol. XV); 93-116 (Vol. XI); 93-08 (Vol. X); 90-91 (Vol. VI); People v Moreno, 70 NY2d 403 (1987). 

Opinion:

         A judge who presides in a county court states that his/her spouse is a special prosecutor for Vehicle and Traffic Law matters in a town court within the same county where the judge presides. The judge states that his/her spouse “operates in [a] limited sense under the authority” of the county district attorney because the spouse lacks authority to resolve certain categories of traffic violations by plea agreement without the district attorney’s consent and because the spouse’s initial appointment as special prosecutor was subject to the district attorney’s approval. The judge asks whether he/she may preside in matters where the district attorney’s office appears or in traffic cases originating in the town court and, if so, whether any disclosure is required. The judge further asks about his/her ethical obligations if his/her spouse resigns from the special prosecutor position.

         A judge must 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 any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). Disqualification is required, for example, where the judge’s spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]) or has an interest that might be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]).

         The Committee has previously advised that a judge whose spouse is an attorney in a public law office is disqualified from presiding when the judge’s spouse has any personal or supervisory involvement (see Opinions 10-05; 93-116 [Vol. XI]; 93-08 [Vol. X]; 90-91 [Vol. VI]; 22 NYCRR 100.3[E][1][e]). However, disqualification for this reason is subject to remittal except when a party is self-represented or if the matter is before the court ex parte (see Opinion 10-05; 22 NYCRR 100.3[F]).

         Attorneys in a public law office typically do not have “an interest that could be substantially affected by the outcome of the proceeding” when other attorneys from the same public law office appear (see Opinions 93-08 [Vol. X]; 90-91 [Vol. VI]; 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]). Thus, the Committee has advised that a judge need not affirmatively disclose that his/her spouse is employed in a non-supervisory position as an assistant district attorney or assistant corporation counsel when other assistant district attorneys or assistant corporation counsel from the same office appear, as long as the spouse is not personally involved in the matter (see Opinions 93-116 [Vol. XI]; 93-08 [Vol. X]; 90-91 [Vol. VI]). In such cases, neither disclosure nor disqualification is required as long as the judge is satisfied that he/she can be fair and impartial in other matters handled by the same public law office (see Opinions 10-05; 07-216; 97-39 [Vol. XV]; 22 NYCRR 100.3[E][1]; see also People v Moreno, 70 NY2d 403 [1987]).

         Accordingly, the inquiring judge is disqualified, subject to remittal, from any matter in which his/her spouse has been involved (see 22 NYCRR 100.3[E][1][e]; 100.3[F]; Opinions 10-05; 93-116 [Vol. XI]; 93-08 [Vol. X]; 90-91 [Vol. VI]). For other matters originating in the town court or involving the district attorney’s office, the judge may preside, and need not make any disclosure of the spouse’s employment, as long as the judge concludes that he/she can be fair and impartial (see Opinions 10-05; 07-216; 97-39 [Vol. XV]; 22 NYCRR 100.3[E][1]; see also People v Moreno, 70 NY2d 403 [1987]).

         In the Committee’s view, the judge’s spouse’s resignation from the position of special prosecutor does not affect these obligations. The judge must continue to disqualify him/herself from matters in which his/her spouse was personally involved (cf. Opinion 93-116 [Vol. XI]), but need not otherwise disclose or recuse based on his/her spouse’s former employment (cf. Opinion 97-39 [Vol. XV]).