Inquiry 18-06

April 5, 2018

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).

Dear :

         This responds to your inquiry (18-06) asking whether you may preside in matters involving the District Attorney’s Office where your domestic partner is employed as a confidential secretary and office administrator.

         The Committee has previously advised that the Rules Governing Judicial Conduct do not require a judge’s disqualification when an attorney from a District Attorney’s Office or other law enforcement agency that employs the judge’s spouse in a clerical capacity appears in the judge’s court unless the judge’s impartiality may reasonably be questioned. For example, a judge is disqualified if his/her spouse has an economic interest in the subject matter; is a party to the proceeding; is likely to be a material witness; or has any interest that could be substantially affected by the outcome of the proceeding (see 22 NYCRR 100.3[E][1][c] - [e]).

         Consequently, barring mandatory disqualification, you may preside over cases involving the District Attorney’s Office where your partner is employed provided you can remain entirely impartial and you affirmatively disclose your partner’s employment. If there is an objection following disclosure, disqualification is entirely within your discretion. However, because disclosure is mandated here, if the defendant appears without counsel, you must simply recuse yourself from the matter.

         Enclosed for your convenience are Opinions 10-23 and 93-28 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.