Opinion 13-49

October 24, 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:         If the judge determines that he/she can be impartial and that neither disclosure nor disqualification is required under Opinion 11-125, whether to disclose the social connection the judge has to an assistant district attorney who is the future spouse of the judge’s law firm colleague is solely within the judge’s discretion.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(g); 100.3(F); 100.6(B)(3); Opinions 11-125; 11-64; 10-94; Joint Opinion 07-114/07-120; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A part-time judge who is also employed as an associate at a law firm states that one of his/her fellow associates is engaged to be married to an assistant district attorney who is currently assigned to prosecute matters in the judge’s court. According to the judge, the wedding date is scheduled. The judge states that he/she socializes with the couple “several times per year at various firm and client events” and has worked on certain matters with the associate. In order to avoid any possible appearance of impropriety, the judge asked that a different assistant district attorney be assigned to his/her court, but the District Attorney’s office declined to do so. The judge now asks whether disclosure or disqualification is ethically required when the assistant district attorney appears in the judge’s court.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always 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 his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         There are two initial objective questions to consider when determining if disqualification is required. The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[g]) or Judiciary Law §14. If none of those enumerated circumstances applies, the second question is whether the judge's impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under those objective standards, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

         The judge’s relationship with his/her fellow associate is not one that mandates the judge’s disqualification pursuant to the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14 when the associate’s future spouse or spouse appears before the judge as an assistant district attorney. Nor, given the facts presented, does the Committee believe that the inquiring judge’s impartiality might reasonably be questioned in matters where the assistant district attorney appears (see 22 NYCRR 100.3[E][1]). Although a judge must not permit his/her partners or associates to practice law in the court in which he/she is a judge (see 22 NYCRR 100.6[B][3]; Opinion 10-94), this prohibition does not extend to the spouse or future spouse of the judge’s law firm colleagues.

         Whether a judge’s social relationship with an attorney warrants disclosure or disqualification depends on such factors as the nature of the relationship with the attorney, and the frequency and context of their contacts (see Opinion 11-125). For example, if a judge and an attorney interact outside the court due to happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, the judge and the attorney are acquaintances, and neither disqualification nor disclosure is required as long as the judge believes he/she can be fair and impartial (see id.). But, if the judge and the attorney maintain a close social relationship, the judge must, at the very least, disclose the relationship either in writing or on the record, even if the judge believes he/she can be fair and impartial (see id.). If after such disclosure, a party objects to the judge continuing to participate in the matter, it is solely within the judge’s discretion whether to grant the objection and exercise recusal or to preside, unless a party appears without representation (see id.). In that case, the judge must disqualify him/herself, and remittal is not permitted (see Joint Opinion 07-114/07-120). It is left to the particular judge to determine the nature of his/her relationship with an attorney and his/her obligation to either disclose or disqualify him/herself (see Opinion 11-125).

          The inquiring judge indicates that he/she socializes with his/her law firm colleague and the colleague’s future spouse several times per year at various law firm and client events. From the facts presented in the inquiry, the Committee infers that the relationship between the judge and the assistant district attorney is that of social acquaintances, but the judge must consider Opinion 11-125 and determine the nature of the relationship, based on all the circumstances known to the judge. In the Committee’s view, if the judge determines that he/she can be impartial and that neither disclosure nor disqualification is required under Opinion 11-125, then whether to disclose the social connection the judge has to an assistant district attorney who is the future spouse of the judge’s law firm colleague is solely within the judge’s discretion.