Opinion 13-176

December 12, 2013

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:         In a case where the attorney for the child is the judge’s personal appointee’s spouse, the judge must disclose the relationship and insulate his/her personal appointee. Provided that no party is appearing pro se and assuming the judge concludes that he/she can be fair and impartial, the judge may preside in the case, except that the judge may not approve any payment voucher the attorney for the child submits.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2 (B); 100.3(E)(1); Opinions 13-26; 12-94; 12-72; 94-38 (Vol. XII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring Family Court judge asks whether he/she may preside in a case where the attorney for the child is the judge’s personal appointee’s spouse.¹ If so, the judge further asks whether he/she may approve the attorney’s payment voucher for the legal services the attorney provided.

         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, 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 required by rule or law (see generally id.; Judiciary Law §14). Of course, if the judge doubts his/her ability to be impartial in a particular matter, then disqualification is required (see Opinion 12-94).

         The Committee has advised that a judge is not required to disqualify him/herself when an attorney who is related to the judge’s law clerk or secretary “within the fourth degree of relationship by blood or marriage” appears in the judge’s court, provided that no party is appearing without counsel (see Opinion 13-26). Rather, the judge must disclose the relationship and that he/she will insulate his/her personal appointee from the attorney’s and the attorney’s law firm’s cases (see id.). After such disclosure, if a party objects to the judge’s continued participation in the case, the judge has the sole discretion to decide whether to exercise recusal (see id.; see also generally People v Moreno, 70 NY2d 403 [1987]). Because disclosure is mandated here in lieu of disqualification, the judge must simply disqualify him/herself if any party is proceeding without legal representation (see Opinion 13-26).

         To avoid even the appearance of impropriety, however, the inquiring judge should not authorize payment to his/her personal appointee’s spouse at the conclusion of the matter, as doing so is likely to afford a financial benefit to the judge’s personal appointee (see generally 22 NYCRR 100.2; cf. Opinions 12-72 [noting that spouses “ordinarily reside in the same household and maintain both an emotional and financial relationship”]; 94-38 [Vol. XII] [where judge retained an attorney for a private legal matter after appointing the attorney as guardian in a competency hearing, “[t]he judge should not act on the fixing of fees of the attorney even if such fees are not challenged”]). The judge should therefore ask his/her administrative judge to appoint another judge to review and approve any fees or payment for the attorney for the child.

_________________________

         ¹ A judge who presided in the case at an earlier stage appointed the attorney for the child.