Opinion 19-16

January 31, 2019

Digest:         A part-time justice who also serves as full-time secretary to a superior court judge is disqualified in cases involving the superior court judge’s spouse’s law firm.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 12-37; 12-05.

Opinion:

         A part-time town or village justice also is a full-time secretary to a superior court judge in the same county. The superior court judge’s spouse is a practicing attorney who sometimes appears in the part-time judge’s court. The judge asks if he/she may preside in cases involving (1) the superior court judge’s spouse or (2) the spouse’s partners and associates.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must not allow family, social, political or other relationships to influence his/her judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a case where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         When a trial-level judge leaves the bench and appears as a private attorney before judges and quasi-judicial officials in his/her former court, we have distinguished between the ex-judge’s former peers and his/her former subordinates. As described in Opinion 12-37 (citations omitted):

while judges of the court are not necessarily disqualified from presiding when a former judge of the same court appears before them, the Committee has concluded otherwise in the case of referees and JHO’s whose former supervisor or employer appears.

Similarly, a judge who is a former law clerk is disqualified, subject to remittal, when his/her former supervising judge appears as an attorney, for one year after the employment relationship ends (see Opinion 12-05). Thereafter, disclosure is mandated for another year in lieu of outright disqualification (see id.).

         Here, the inquiring part-time justice is concurrently a superior court judge’s full-time secretary and personal appointee. The public will perceive that the justice is the superior court judge’s subordinate, whose livelihood presumably depends on the superior court judge. In these circumstances, the justice’s impartiality “might reasonably be questioned” when the superior court judge’s spouse’s law firm appears in the justice court (22 NYCRR 100.3[E][1]).

         Accordingly, we conclude the inquiring justice must not preside over cases involving the superior court judge’s spouse or his/her partners and associates.