Opinion 14-155

November 14, 2014

PERSONAL AND CONFIDENTIAL

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).

Dear :

         This responds to your inquiry (14-155) about your ethical obligations should your spouse accept employment with a local attorney, a solo practitioner who appears before you “quite frequently” as a criminal defense attorney. You indicate the position is “administrative/clerical” in nature as your spouse will manage the attorney’s office.

         A judge must always avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge cannot 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 in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

          In our opinion, should your spouse accept employment with a solo practitioner who appears regularly in your court, your impartiality could reasonably be questioned when the practitioner appears, as your spouse would have an economic interest that might be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c], [d][iii]). Therefore, you would have to disqualify yourself (see 22 NYCRR 100.3[E][1]). Your disqualification for this reason would be subject to remittal, unless a party appears without representation (see Opinion 10-146). If you fully disclose the basis for your disqualification on the record and the parties who have appeared and not defaulted and their lawyers, without your participation, all agree on the record that you should not be disqualified, and you believe you will be impartial and are willing to participate, you may do so (see 22 NYCRR 100.3[F]; see Opinion 10-146). However, remittal is not available if a party appears without an attorney (see id.).

         Enclosed, for your convenience, are Opinions 99-87 and 10-146 which address this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.