Opinion 19-13

January 31, 2019

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:         (1) A judge may preside in cases involving his/her co-judge’s former private law firm associates, including a former associate who is the co-judge’s relative.

(2) A judge may preside in cases involving his/her co-judge’s spouse and the spouse’s current attorney colleagues in a government law office.

(3) Where a judge’s own spouse works for a government law office and that office is involved in a case before the judge:

            (a) in all matters where the judge’s government attorney spouse personally appears in the courtroom, the judge is disqualified, without the possibility of remittal;

            (b) in all matters where the judge’s government attorney spouse is involved behind the scenes but is not present in the courtroom, the judge is disqualified, but the disqualification is subject to remittal as long as no party is appearing without counsel; and

            (c) in other matters involving the government law office, if the judge is satisfied that his/her spouse has absolutely no involvement in the matter and is not the attorney of record, the judge may preside.

(4) A judge who, along with his/her spouse, previously worked for a government law office in a non-supervisory capacity may preside in cases where neither the judge nor his/her spouse had any personal involvement and in which neither was the attorney of record.

Rules:          Judiciary Law §§ 14; 471; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(I); 100.3(E)(1)(e)(i)-(ii); 100.3(F); 100.6(B)(3); Opinions 18-04(A); 17-150; 16-130; 15-211; 15-87; 12-154; 07-14; 06-111; 06-91; 99-170; 99-72; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time and part-time judge in the same city court ask whether they may preside in cases involving certain attorneys who have ongoing or former connections with one or the other judge.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a judge must not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge must disqualify him/herself where specifically required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). However, where disqualification is not mandated under objective criteria, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

1. Co-Judge’s Relatives and Former Private Law Firm Colleagues

         The full-time judge has recently ceased practicing law in a private law firm with a number of partners and associates; one of those former law firm colleagues is also his/her first-degree relative. The part-time judge thus asks if he/she may preside in cases involving his/her co-judge’s former partners and associates, including the co-judge’s relative.

         A judge must “not permit the practice of law in his or her court by the law partners or associates of another judge of the same court who is permitted to practice law” (22 NYCRR 100.6[B][3]; see also Judiciary Law § 471). Because this rule “is not intended as a punishment or sanction,” there is no need to continue the prohibition once the danger of “the appearance of possible favoritism or undue influence” has been eliminated (Opinion 06-91). Thus, “[w]here the relationship between a [part-time] lawyer-judge and the law firm in which he/she had been a partner is severed, there is no longer a basis for requiring another judge on the same court to disqualify that law firm” (id.). That is, once the legal relationship is terminated, the basis for disqualification is eliminated. Similarly, in response to a question from a judge who had recently left his/her former private law firm, we noted his/her “co-judge is not precluded from presiding in any case of the inquiring judge’s former law firm” (Opinion 99-72).

         We have also said “a judge’s impartiality cannot reasonably be questioned solely because an attorney appearing before the judge is closely related to his/her co-judge” (Opinion 15-87). Thus, a judge may ordinarily preside in matters where his/her co-judge’s spouse appears as an attorney, provided he/she can be fair and impartial and “absent any different, additional factor” about the judge’s relationship with that attorney (see id.; see also Opinions 17-150 [second-degree relative]; 12-154 [first-degree relative]; 99-170 [first- and second-degree relatives]). Disclosure is not required (see e.g. Opinions 15-87; 12-154).

         Therefore, we conclude that the part-time judge may preside in matters involving the full-time judge’s former law firm, including the former colleague who is a first-degree relative of the full-time judge, provided he/she can be fair and impartial.¹

2.      Co-Judge’s Spouse and Government Law Office Colleagues

         The part-time judge’s spouse is the junior (non-supervisory) attorney in a two-attorney government law office.² The full-time judge asks if he/she may preside in matters involving his/her co-judge’s spouse or the spouse’s supervisor, who heads the department.

         As noted above, a judge may preside in cases where a co-judge’s spouse appears as an attorney and is not required to disclose the relationship (see Opinion 15-87). Likewise, the judge may preside in matters involving other attorneys from the co-judge’s spouse’s office (see id.).

         Accordingly, we conclude the full-time judge may preside in matters involving either attorney of the government law office that employs the part-time judge’s spouse, assuming he/she can be fair and impartial.

         We note that this result does not change even if a particular matter handled by that government law office happened to arise, coincidentally, during a time period when the co-judge and his/her spouse also shared a separate private law office through which they did unrelated legal work.

3.      Own Spouse’s Government Law Office Colleagues

         The part-time judge asks if he/she may preside in cases involving the small government law office that employs his/her spouse in a non-supervisory capacity, provided the spouse is insulated from any involvement with the matter. Again, we note in this two-attorney department, the judge is effectively asking if he/she may preside in matters involving his/her spouse’s supervisor, who is attorney of record for the department.

         We addressed a similar question in Opinion 17-150, where a judge’s second-degree relative was a non-supervisory assistant public defender. Because the judge’s relative was in a government law office, rather than a private law firm, we advised that the judge (id.):

(a)  is disqualified, without the possibility of remittal, from cases in which his/her relative personally appears in the courtroom as counsel;

(b) is disqualified, subject to remittal, in cases where his/her relative participates as counsel behind the scenes but does not personally appear in the courtroom; and

(c)  may preside in matters involving his/her relative’s public defender office colleagues, provided the relative has absolutely no involvement in the case and is not the attorney of record.

         We believe the same analysis applies here. Accordingly, the part-time judge is disqualified, without the possibility of remittal, from cases in which his/her spouse personally appears in the courtroom as counsel or is likely to do so (id.; 22 NYCRR 100.3[E][1][e][i]); is disqualified, subject to remittal where available,³ in cases where his/her spouse participates as counsel behind the scenes but does not personally appear in the courtroom (see Opinion 17-150; 22 NYCRR 100.3[E][1][e][ii]); but may preside in matters involving his/her spouse’s government law office colleague, provided the spouse has absolutely no involvement in the case and is not the attorney of record (see Opinion 17-150).

         In other words, if the part-time judge is satisfied that his/her government attorney spouse is fully insulated from any involvement whatsoever in a case which the spouse’s supervisor is handling alone as the attorney of record, the judge may preside.

4.      Judge’s Former Government Law Office Employer

         Finally, the part-time judge asks if he/she may preside in matters involving another public law office where the judge and his/her spouse each were previously employed as non-supervisory attorneys. The judge’s employment with the office ended more than two years ago, and his/her spouse’s employment there ended more recently.

         We have previously addressed a judge’s obligations based on his/her own former non-supervisory employment as an attorney in a government law office. The judge is permanently disqualified from presiding in a case in which the judge had any involvement whatsoever as a government attorney (see Opinion 18-04[A] [former non-supervisory assistant district attorney]; 15-211 [former assistant district attorney]; 22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14). However, a judge “may preside over cases that were pending in the District Attorney’s office during the judge’s tenure as an Assistant District Attorney, provided the judge had no involvement with those cases and the judge believes that he/she can be fair and impartial” (Opinion 07-14; see also Opinions 18-04[A]; 15-211). Likewise, we said a judge “may preside in matters involving his/her prior conflicts office colleagues, provided the judge had absolutely no involvement in the case and was not the attorney of record, assuming the judge can be fair and impartial” (Opinion 17-150).

         Moreover, as previously noted, a judge “may preside in matters involving his/her relative’s public defender office colleagues, provided the relative has absolutely no involvement in the case and is not the attorney of record” (Opinion 17-150). We see no reason to apply a higher standard to a spouse’s former government law office colleagues.

         We conclude the part-time judge generally may preside in criminal cases involving the government law office that formerly employed the judge and his/her spouse in a non-supervisory capacity, provided neither had any personal involvement in the case and neither was the attorney of record (see Opinions 17-150; 07-14).

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¹ Of course, the full-time judge must continue to disqualify him/herself from matters involving his/her former partners and associates and from matters involving his/her first-degree relative’s current partners and associates, as required by the Rules and prior opinions (see e.g. Opinions 99-72; 06-111).

² We use the terms “government law office” and “public law office” interchangeably to refer to public sector entities such as a corporation counsel’s office, a public defender’s office, or a district attorney’s office.

³ As always, remittal is not permitted if any party appears pro se or if the judge doubts his/her ability to be impartial. Where available, 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 Opinion 16-130; 22 NYCRR 100.3[F]).