Opinion 15-05

January 29, 2015

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 need not disclose that his/her spouse works for a municipal councilperson as an administrative assistant even though the spouse schedules constituent appointments with a pro bono attorney who provides assistance and advice to litigants who appear in the judge’s court.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-27; 13-47; 13-44; 12-116; 11-147; 11-127; 11-124.

Opinion:

         The inquiring judge’s spouse is an administrative assistant in a municipal councilperson’s office. That member makes a pro bono attorney available to constituents for consultations on matters heard in the judge’s court. The spouse answers constituents’ calls and schedules their meetings with the attorney. The spouse gives no legal advice. The judge asks if he/she must disclose the spouse’s employment if an appearing litigant was assisted by the member’s pro bono attorney.

         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]). Therefore, a judge must not allow family, social, political or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Although the judge asks if he/she must disclose his/her spouse’s employment, the appropriate starting point for analysis is Section 100.3(E)(1)(see Opinion 13-44 n.1) and whether the judge must disqualify him/herself due to his/her spouse’s employment. However, these facts do not involve any specific circumstance where a rule or statute mandates disqualification. (See 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). Accordingly, the next issue is whether the judge’s impartiality might nonetheless reasonably be questioned (see 22 NYCRR 100.3[E][1]; Opinion 13-47).

         The Committee believes these facts do not create an objectively reasonable basis to question the judge’s impartiality. His/her spouse has minimal, routine contact with both prospective litigants and the pro bono attorney, limited as it is to scheduling their appointments. In the apparent absence of any discussion between the judge’s spouse and the caller (or with the pro bono attorney to whom he/she refers the caller) as to the substance of any legal matters under consideration, no basis appears to conclude the judge’s impartiality might reasonably be questioned.

         Accordingly, the Committee advises that if the judge learns an appearing litigant is receiving, or has received, assistance from a pro bono attorney the councilperson provides, the judge need not disclose the spouse’s employment in that councilperson’s office. The judge may however, in his/her discretion, voluntarily disclose. On these facts, if the judge does disclose, disqualification is unnecessary even if a party is unrepresented, and the judge may, at his/her discretion, continue to preside even if a party objects (see Opinions 12-116; 11-147; 11-127; 11-124).¹

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         ¹ The purely prophylactic disclosure that a judge may, in his/her discretion, choose to make does not entail the same consequences as the disclosure that occurs as part of the remittal of disqualification process (see 22 NYCRR 100.3[F]) or when disclosure is mandated in lieu of outright disqualification (see e.g. Opinion 14-27).