Opinion 16-31

March 16, 2016

Digest:         A judge need not disclose that his/her attorney spouse is currently litigating an unrelated action in another court, as opposing counsel to one of the attorneys appearing before the judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); Opinions 15-96; 12-75; 11-103.

Opinion:

         The inquiring judge asks if he/she must disclose to the parties and counsel in a matter before the judge that the judge’s attorney spouse is currently litigating an unrelated action in another court, as opposing counsel to one of the attorneys appearing before the judge.¹

         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]). A judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]); must not permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]); and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In Opinion 11-103, an attorney requested a judge’s recusal because that attorney was opposing counsel to the judge’s attorney spouse in another matter. The Committee advised that where “there is no allegation that the inquiring judge has exhibited any bias, or any prohibited interest or prejudice concerning any party or subject matter currently before the judge,” the judge need not recuse himself/herself (Opinion 11-103). Thus, disqualification was not mandatory, provided the judge determined he/she could be fair and impartial (id.).

         Here, unlike in Opinion 11-103, it is unclear whether any of the parties or counsel are aware that the judge’s attorney spouse is opposing counsel to one of the attorneys in an unrelated action. The inquiring judge thus asks whether disclosure is mandatory.

         The Committee has addressed this issue once before, albeit in the more unusual context where a judge who was a party in a contested matrimonial action had an equitable distribution interest in the future legal fees the judge’s former attorney spouse might obtain in a discrete set of cases. In that specific circumstance, the Committee concluded “there is a risk that the judge’s impartiality could reasonably be questioned when the opposing counsel from an ongoing case in which the judge has an equitable distribution interest appears before the judge” (Opinion 15-96). Thus, “when the opposing counsel from one of the ongoing equitable distribution cases appears before the judge, the judge must disclose that the counsel represents the defendant in a different, unrelated case before another judge, in which the inquiring judge has a percentage interest in the plaintiff’s counsel’s eventual legal fees, if any” (id.).

         Where a judge has an equitable distribution interest in a few specific identifiable cases involving his/her former spouse, the public may readily infer that the judge or his/her matrimonial counsel will be unusually well-informed about these cases, including the identity and reputation of opposing counsel and their likelihood of success, in order to estimate the value of the judge’s anticipated financial stake. By contrast, the inquiring judge here is not involved in a matrimonial action, and thus presumably will benefit more generally from a wide variety of legal fees earned by his/her attorney spouse over time, on an ongoing basis. Such “diffused” interest makes it unlikely that this judge will be as informed or as invested in any specific case in his/her spouse’s legal practice. Indeed, it would be difficult, if not impossible, for a judge to keep close track of an attorney spouse’s litigation opponents throughout the course of a marriage. Thus, the Committee believes the disclosure requirement set forth in Opinion 15-96 should be limited to its facts; ordinarily, a judge’s impartiality cannot reasonably be questioned merely because an attorney spouse’s opposing counsel appears before the judge on matters in which the judge and his/her spouse have no financial or economic interest (see Opinion 11-103; cf. Opinion 12-75 [a trial court judge may preside in a matter that involves legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters]).

         Therefore, assuming the judge believes he/she can be fair and impartial, he/she need not disclose the relationship.

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         ¹That is, in an unrelated matter before a different judge, the attorney and the judge’s spouse are both appearing on behalf of clients whose interests are adverse.