Opinion 16-130

September 8, 2016

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:         Where a judge’s spouse, as director of government relations, helps select a law firm to handle lobbying and works directly with the law firm’s lobbyists, the judge is disqualified, subject to remittal, from matters involving that law firm. The obligation lasts for the duration of the attorney-client relationship between the spouse’s employer and the law firm, but terminates when the relationship ends.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 16-21; 03-83; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         A judge’s spouse works for a not-for-profit entity which retains a private law firm to engage in lobbying. The spouse, as the entity’s director of government relations, works directly with the outside law firm’s lobbyist. While the spouse does not have authority to retain a particular law firm, he/she has substantial input in the selection and helps prepare a recommendation for the board of directors. As the law firm’s lobbyists are now joining another law firm, the spouse’s employer plans to discontinue its relationship with the first law firm and instead retain the latter firm.¹ The judge asks if he/she may preside in cases involving these law firms or their attorneys, either as parties or counsel.

         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]). Thus, a judge must disqualify him/herself whenever the judge’s impartiality may reasonably be questioned (see 22 NYCRR 100.3[E][1]), or whenever required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14).² If not mandated under these objective standards, he/she “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         The Committee considered somewhat similar facts for a judge’s spouse’s relationship with his/her employer’s outside law firm in Opinion 03-83. As the Committee summarized the facts (id.):

The judge’s spouse is a salaried employee of a company and in that position has had occasion to hire attorneys. In each instance, the retention of the attorney is approved by a principal of the employer, but the judge’s spouse is responsible for the initial choice. Further, the spouse is usually involved in the conduct of the litigation and may appear as the representative of the party, or as a witness, or by way of affidavit.

Under those circumstances, the Committee concluded (id.):

Where an attorney is representing the judge’s spouse’s employer and is also appearing before the judge on an unrelated matter, the relationship of judge and spouse and spouse and employer may create a reasonable basis for questioning impartiality.

         The Committee believes that similar principles apply here, because this judge’s spouse helps select a law firm to represent his/her employer in lobbying and works directly with the law firm’s lobbyist. The described relationship between the judge’s spouse and the law firm may create a reasonable basis for questioning the judge’s impartiality when the law firm appears before the judge (see Opinion 03-83; 22 NYCRR 100.3[E][1]). The fact that the law firm here represents the spouse’s employer in lobbying, rather than litigation, does not materially change the analysis.

         Accordingly, judge is disqualified, subject to remittal, from matters involving the spouse’s employer’s law firm for the duration of the attorney-client relationship. As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial (see Opinion 16-21). However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see id.; 22 NYCRR 100.3[F]).

         Once the attorney-client relationship terminates, however, the judge has no further obligation to disclose or disqualify with respect to the spouse’s employer’s former law firm. Indeed, on the facts presented, the individual attorneys who previously handled lobbying matters for the spouse’s employer will no longer be affiliated with the employer’s former law firm. Thus, there can be no reasonable basis to question the judge’s impartiality and no possible appearance of impropriety in the judge presiding when the former law firm appears (see 22 NYCRR 100.2; 100.3[E][1]).

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         ¹ It appears that, while the first law firm has many traditional practice areas, including litigation, the second law firm is more narrowly focused on lobbying.

           ² For example, a judge is disqualified, subject to remittal, if the judge knows his/her spouse “has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]), “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]), or “is an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]).