Opinion 12-36

March 8, 2012

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:         (1) While child support obligations continue between a judge and his/her ex-spouse, who is a local prosecutor, the judge is disqualified when either the ex-spouse or other attorneys subject to the judge’s ex-spouse’s supervision appear before the judge. Disqualification during this period is subject to remittal unless a party appears without counsel. (2) (a) After the financial obligations between the ex-spouses are discharged, the judge must disclose the former marital relationship when his/her ex-spouse appears before him/her, but need not make any disclosure when other prosecutors subject to the ex-spouse’s supervision appear before the judge. (b) During this period, the judge must disqualify him/herself from a matter in which the judge’s ex-spouse appears if any party is self-represented.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(F); Opinions 11-151; 11-127; 11-125; 10-160; 09-138; 07-99; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge presiding in criminal matters states his/her ex-spouse is a local prosecutor, with supervisory responsibility over several other local prosecutors. The judge indicates that he/she currently has child support obligations to his/her ex-spouse.

         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]). A judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]); must not permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]); 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]).

         In Opinion 07-99, a judge who was “on good terms with his/her ex-spouse” and noted that “all financial obligations arising out of the divorce have been discharged” asked whether he/she was disqualified from presiding over matters in which his/her ex-spouse appears as a prosecutor. The Committee advised that, absent disclosure of the former marital relationship and the consent of all parties, there was a risk of “creating the appearance that the judge may be influenced by the former marital relationship” (Opinion 07-99).

         Here, there is another connection between the judge and his/her ex-spouse, i.e.,an ongoing child support obligation owed by one to the other. In the Committee’s view, this ongoing financial connection increases the risk of an “appearance that the judge may be influenced by the former marital relationship” (id.). Therefore, until this obligation is fully discharged, the judge must disqualify him/herself both when his/her ex-spouse appears and when other prosecutors subject to his/her supervision appear (see 22 NYCRR 100.3[E][1]). The judge’s disqualification is subject to remittal, provided that all parties appear with counsel (see 22 NYCRR 100.3[F]; Opinions 11-151; 07-99).¹

         After the financial obligations arising from the divorce have been discharged, the judge need not disqualify him/herself nor disclose the former marital relationship when prosecutors subject to his/her ex-spouse’s supervision appear before the judge (see 22 NYCRR 100.3[E][1]). The judge may, in his/her discretion, make such disclosure, even if a party is unrepresented, without incurring any obligation to disqualify him/herself (see Opinion 11-127).

         However, when the judge’s ex-spouse appears before the judge after the obligations have been discharged, the judge must disclose the former marital relationship (see Opinion 07-99; cf. Opinion 11-125 [Section II]). The Committee concludes that whether the judge must disqualify him/herself when a party objects to the judge’s continued participation after disclosure is solely within the judge’s discretion (see People v Moreno, 70 NY2d 403 [1987]; cf. Opinion 11-125).² And, because disclosure is required here in lieu of outright disqualification, if a party appears without counsel the judge must disqualify him/herself, and remittal is not permitted (see Opinions 11-127; 11-125; 07-99).

         Of course, if the judge doubts his/her ability to be impartial in matters in which his/her ex-spouse appears, the judge must disqualify him/herself (see Opinion 10-160; 22 NYCRR 100.3[E][1]).

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     ¹Remittal is a three-step process: “First, the judge must fully disclose the basis for disqualification on the record. Second, following such disclosure, and without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion 09-138).

     ² Opinion 07-99 is therefore modified to the extent that it provides that the judge may only preside “upon consent of the parties” (Opinion 07-99).