Opinion 15-33

March 19, 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 disqualify him/herself or disclose the spousal relationship (1) when the judge’s spouse’s former law firm appears before the judge on matters in which the spouse had no involvement, even though the law firm maintains a fee interest in eight other matters handled by the spouse, or (2) when attorneys to whom the judge’s spouse has referred occasional, discrete cases, or from whom the judge’s spouse has received such cases, appear in the judge’s court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(e); 100.3(E)(2); 100.3(F); Opinions 14-78; 02-136; 99-146; 95-35.

Opinion:

A full-time judge asks if the judge must recuse him/herself when the judge’s spouse’s former law firm appears, even if the spouse never handled the matter. When the spouse left the former law firm to open a new practice, he/she took several matters to the new firm, and reached an agreement with the former firm about the division of legal fees. The former law firm thus has a fee interest in those cases the judge’s spouse is currently handling.¹

Moreover, the judge’s spouse frequently obtains cases based on referrals from other attorneys, and sometimes refers cases to other firms. The judge realizes he/she cannot preside if the spouse has a direct financial interest (i.e., a case in which the spouse will receive a referral fee). Where a lawyer or law firm maintains an ongoing referral fee arrangement with the judge’s spouse, however, the judge asks if disqualification is also required in other matters involving such lawyer or law firms on other matters, in which the spouse has no involvement or financial interest. The inquiring judge notes that, other than the aforementioned relationship between his/her spouse and the spouse’s former law firm, the judge is often unaware of which attorneys or firms have made or received referral fee arrangements with the judge’s spouse, despite reasonably diligent efforts to stay abreast of such referral relationships. 

A judge must always avoid even the appearance of impropriety (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]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial judgment or conduct (see 22 NYCRR 100.2[B]) and must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including when the judge knows that the judge’s spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]), or that the judge’s spouse has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]).

Critically, the present inquiry focuses on cases in which, although the judge’s spouse has a professional connection with a lawyer or law firm appearing before the judge, the spouse has no economic interest in the case before the judge and has never participated in it; the spouse is neither acting as a lawyer in the matter nor appearing to do so. Moreover, the professional connection at issue does not reach the level of a formal association in the practice of law.

The Committee has previously advised that an appellate judge need not affirmatively disclose that the judge’s spouse has been employed on an occasional, part-time, per diem basis by a law firm appearing before the appellate court, but should recuse if the spouse has had any involvement with the case (see Opinion 99-146, interpreting 22 NYCRR 100.3[E][1][e]). In reaching that result, the Committee concluded that prior opinions establish a “bright line” that “where the judge’s spouse is employed on a continuing, full-time basis in a position where the spouse would likely be involved, directly or indirectly, in a substantial number of cases brought before the court in which the judge sits, the judge would be disqualified from participating in any cases in which that law firm is involved,” subject to remittal (id.).²

Here, where the spouse no longer works for the law firm, and is thus neither employed on a continuing, full-time basis nor in a position where the spouse would likely be involved in a substantial number of cases the law firm may bring in the judge’s court, neither disqualification nor disclosure is required if the former law firm appears before the judge, provided the spouse had no involvement at all in the case. That the firm retains a fee interest in eight matters currently handled by the spouse does not alter the result, as the spouse’s residual fee relationship with the law firm does not rise to the level of employment on a continuing, full-time basis (cf. Opinion 95-35 [where judge’s spouse has a continuing counsel relationship with a law firm, and not “merely a retainer interest in occasional, discrete, separate cases,” judge would be disqualified from presiding in cases in which any member or associate of that firm appeared]).

For like reasons, the Committee concludes neither disqualification nor disclosure is mandated when attorneys to whom the judge’s spouse has referred occasional, discrete cases, or from whom the judge’s spouse has received occasional, discrete cases, appear in the judge’s court on unrelated matters (see id.). Of course, the judge may not preside over any matters in which the spouse was involved or has an economic interest, including those referred by the spouse, or matters in which the attorney appearing before the judge has an ongoing counsel relationship with the judge’s spouse (see e.g. Opinion 02-136 [disqualification subject to remittal for matters involving a law firm that retained the judge’s architect spouse for an architectural project]). However, no recusal is required in matters where the judge’s spouse never participated and involve attorneys or law firms with whom the spouse merely has referral arrangements in occasional, discrete cases.

It is important to note that since disqualification necessarily hinges on the relationship between the judge’s spouse and other attorneys or law firms, the judge must make reasonable efforts to keep informed about the spouse’s various referral relationships (cf. 22 NYCRR 100.3[E][2] [a judge shall make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse]).

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         ¹ Fewer than ten outstanding cases are subject to this fee agreement.

           ² Provided that no party is appearing without counsel, a judge who disqualifies him/herself pursuant to 22 NYCRR 100.3(E) may nonetheless preside if the parties and their counsel remit the judge’s disqualification as permitted by Section 100.3(F) and in accordance with the three-step procedure described in the Committee’s prior opinions (see e.g. Opinion 14-78; 22 NYCRR 100.3[F]).