Opinion 19-43

May 16, 2019

Dear :

         This responds to your inquiry (19-43) asking whether you, a part-time town justice, may preside in matters involving (1) the police officer-spouse of your co-judge or (2) the current law firm partners or associates of your co-judge.

The Committee has previously advised that a part-time judge is not ordinarily disqualified from presiding in matters in which a co-judge’s close relative appears either as a witness or an attorney. Where, as here, disqualification is not mandated by rule or law (see 22 NYCRR 100.3[E][1]; Judiciary Law § 14), the key question is whether the judge’s impartiality might nevertheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Accordingly, absent any other factor that may require disclosure or disqualification, you may preside when your co-judge’s spouse appears before you. If, however, you do not believe you can be fair and impartial, you should not preside. Whether to disclose the relationship is solely within your discretion.

As to your second question, according to the Rules Governing Judicial Conduct, a part-time justice “shall 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]). Indeed, we have construed the term “associate” more broadly than the traditional notion of an associate so as to encompass per diem attorneys; “of counsel” attorneys; and even attorneys with certain office-sharing arrangements.

Enclosed, for your convenience, are Opinions 17-86; 15-107/15-110; 09-100 and 92-111 which address these issues.

                                      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.