Opinion 20-126

September 10, 2020

Digest:         A judge must make inquiries concerning their spouse’s ongoing business arrangements with local attorneys and determine if disqualification or disclosure is necessary. The appropriate frequency for inquiring is a fact-specific determination to be made by the judge based on their own assessment of the overall circumstances.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(2); Opinions 15-80; 15-33; 13-24; 07-27; 04-51.

Opinion: 

         The inquiring judge’s attorney spouse is a member of a limited liability company (LLC) that owns an office building. The LLC does business with local attorneys both on an ongoing basis (e.g. attorneys may rent office space in the building or might arrange to have all their mail delivered there) and on an occasional, ad hoc basis (e.g. an attorney may rent a conference room as needed for a particular meeting or use the LLC’s mail room on occasion). The judge has “asked for a list of these attorneys’ names” from their spouse and now asks for guidance on how often they must make such inquiries and on whether disclosure or disqualification is required with respect to these attorneys.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Judges must disqualify themselves when their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). Further, a judge must also “keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse and minor children residing in the judge’s household” (22 NYCRR 100.3[E][2]).

         A judge’s obligations based on a business or financial relationship between their spouse and a particular individual are necessarily fact-dependent. For example, where the spouse’s business interests include “a banking institution and financial services company,” we said the judge was not disqualified from presiding over matters in which account-holders appear, but must “disclose or recuse” in their discretion if the judge knows an attorney, party or witness appearing before them has “significant business dealings” with the spouse’s bank (Opinion 13-24). Similarly, where the judge’s spouse or first-degree relative owns and rents an office building, the judge is disqualified, subject to remittal, in matters involving the attorney tenant (see Opinions 07-27 [attorney’s law firm rents office space from corporation owned by judge’s parents]; 04-51 [attorney rents office space in building owned by judge’s spouse]).¹ Of course, if the judge doubts their own ability to be impartial in a particular case, the judge should not preside (see e.g. Opinion 13-24).

         Conversely, we have said a judge need not disqualify or disclose when attorneys had merely an “occasional, discrete” business relationship with the judge’s spouse or first-degree relative (see Opinions 15-80 [parties engaged in “occasional, discrete business transactions” with the judge’s parents’ manufacturing corporation]; 15-33 [attorneys to whom the judge’s spouse has referred “occasional, discrete cases,” or from whom the judge’s spouse has received such cases]).

         In our view, the judge’s obligation to “make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse” (22 NYCRR 100.3[E][2]) should be informed by an awareness of the judge’s disqualification and disclosure obligations.

         Where an attorney has merely an occasional, discrete business relationship with the LLC, such as renting of a conference room or use of mailing services from time to time, the judge need not disclose or disqualify (cf. Opinions 15-80; 15-33) and the judge therefore need not ask their spouse for a list of such attorneys.

         However, the judge must consult their spouse to determine which attorneys have regular business dealings with the LLC that will require disclosure or disqualification. Thus, for example, the judge should ask for a list of the LLC’s tenants since the judge is disqualified, subject to remittal, in matters involving those tenants (cf. Opinions 07-27; 04-51). With respect to other attorneys who may have “significant business dealings” with the LLC, the judge should exercise discretion to “disclose or recuse” as appropriate (Opinion 13-24). While the judge should make these inquiries on a regular basis, we decline to define what that frequency should be, as this is likewise a fact-specific determination to be made by the judge based on his/her own assessment of the overall circumstances, and we expect the judge to do so within reason.²

_______________________

¹ We note that, while Opinions 04-51 and 07-27 framed the judge’s obligation as disclosure with an offer to recuse, we nonetheless said the judge could only preside if all parties consented or remitted disqualification. We hereby modify these prior opinions to make clear that the judge is disqualified, subject to remittal.

² The frequency could be affected by many factors unknown to us, including whether the LLC’s tenants sign long-term leases and/or whether there is a high turnover rate.