Opinion 16-165

January 4, 2017

PERSONAL & CONFIDENTIAL

Dear :

         This responds to your inquiry (16-165) asking whether it is ethically permissible for the Village to hire a full-time court clerk who is the spouse of the Village prosecutor.

The Committee has consistently advised that a judge is not disqualified from hearing cases prosecuted by the spouse of a court clerk provided the clerk is insulated from cases in which his/her spouse is the complainant or prosecuting officer. Such insulation would avoid the conveyance of any impression that the clerk is “in a special position to influence the judge” (22 NYCRR 100.2[C]) and helps insure the independence and integrity of the judiciary.

Disclosure in these circumstances is not mandatory but, rather, is within the sound discretion of the court.

Enclosed for your convenience are Opinions 16-99; 06-163; 00-123; and 96-85 which address this issue.

                                                 Very truly yours,

                                                 George D. Marlow, Assoc. Justice

                                                 Appellate Div., First Dep’t (Ret.)

                                                 Committee Co-Chair

Hon. Margaret T. Walsh

                                                 Family Court Judge

                                                 Acting Justice, Supreme Court

                                                 Committee Co-Chair

Encls.