Opinion 19-58

May 2, 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:         A judge, whose spouse is a principal clerk in the District Attorney’s office, may not preside in matters involving that office unless the judge (a) can be fair and impartial and (b) discloses his/her spouse’s employment relationship. Because disclosure is required in lieu of outright disqualification, the judge must disqualify him/herself if any party is appearing without counsel in the matter. Otherwise, the judge has full discretion to preside after disclosure, even if a party objects.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(I), (iii); 100.3(E)(1)(e); Opinions 18-06; 12-42; 10-23; 93-28; 90-53; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge asks if he/she may preside in matters involving the District Attorney’s office employing the judge’s spouse as a principal clerk (a state civil service position). The spouse’s duties include a wide range of administrative responsibilities, such as preparing, maintaining, and scanning files; inputting disposition/sentence information; preparing correspondence; and answering phones.

         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]). A judge must not allow family or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must avoid impermissible ex parte communications (see 22 NYCRR 100.3[B][6]). Also, a judge must disqualify him/herself in any proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge’s spouse has an interest that might be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c], [d][iii]). But, if disqualification is not mandated under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         A judge is not automatically disqualified from all matters involving a DA’s office, public defender’s office, or law enforcement agency that employs the judge’s spouse or domestic partner in a strictly clerical capacity (see Opinion 18-06 [DA’s confidential secretary and office administrator]; 12-42 [PD’s confidential secretary]; 10-23 [sheriff’s confidential secretary]; 93-28 [secretary to the narcotics bureau chief]; 90-53 [local police department’s receptionist]). In such instances, we believe, the spouse’s clerical public sector employment “would not be substantially affected by the outcome of any proceeding” before the judge (Opinion 90-53). Accordingly, absent some additional factor requiring disqualification,¹ the judge generally may preside, provided the judge concludes he/she can be impartial and discloses his/her spouse’s position (see e.g. Opinion 18-06).

         The same principles apply here. Thus, the judge may preside in matters involving the DA’s office, provided he/she (a) can be fair and impartial and (b) discloses his/her spouse’s employment status. As disclosure is required in lieu of outright disqualification, the judge must disqualify him/herself if any party appears without counsel in the matter. Otherwise, the judge has full discretion to preside after disclosure, even if a party objects (see People v Moreno, 70 NY2d 403 [1987]).

         As a reminder, the judge must also “strictly comply” with prohibitions on ex parte communications when presiding in cases involving the spouse’s public sector employer (see Opinion 12-42; 22 NYCRR 100.3[B][6] [judge must not “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of parties or their lawyers concerning a pending or impending proceeding”]).

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¹ For example, disqualification is required if the judge’s spouse “offers evidentiary information regarding a proceeding, is likely to be a material witness, has a financial interest in the outcome of the matter, or is a party or attorney to the proceeding” (Opinion 93-28; see e.g. 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][I]; 100.3[E][1][e]).