Opinion 18-175

January 4, 2019

Dear :

         This responds to your inquiry (18-175) asking whether, on assuming the position of town justice, you may preside in criminal matters given your spouse’s position as an assistant district attorney in the same county. You indicate that the District Attorney’s Office has assigned other assistant district attorneys to appear before you.

         A judge must not allow family relationships to influence the judge’s judicial conduct or judgment. Therefore, a judge must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned, including when the judge knows that a person within the fourth degree of relationship acts as a lawyer in the proceeding (see 22 NYCRR 100.2[B]; 100.3[E][1][e]).

         The Committee has advised that where a judge’s spouse is an attorney in a government law office and has had any personal involvement whatsoever in a case, even in a supervisory capacity, the judge’s impartiality may reasonably be questioned. However, if the judge’s spouse is a non-supervisory government attorney and the judge is satisfied his/her spouse will be completely insulated from any matter involving that agency, the judge may preside when other attorneys from the agency appear, provided the judge can be completely impartial. In this circumstance, disclosure of the spouse’s employment is discretionary.

         Accordingly, you may preside over criminal matters involving other assistant district attorneys in the District Attorney’s Office provided you are satisfied your spouse is not involved in any aspect of the matter and you can be fair and impartial.

         Enclosed, for your convenience, are Opinions 18-27; 17-150 (subsection #5); 97-39; and 93-116.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice (Ret.)

                                       Appellate Div., First Dep’t

                                       Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.