Opinion 21-116

September 9, 2021

Digest:       (1) Where a judge regularly assigns a particular attorney as 18-B counsel or attorney for the child in a large number of cases, if the judge hires that attorney’s life partner as the judge’s personal secretary, the judge (a) must not approve the attorney’s payment vouchers and (b) must not assign or appoint the attorney in future cases while the conflict persists.
(2) If these limitations will significantly interfere with the judge’s performance of judicial duties, the judge should not hire the secretary.

Rules:        Judiciary Law § 14; 22 NYCRR 100.0(I); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 18-06; 17-118; 13-176; 13-26; 12-72; People v Moreno, 70 NY2d 403 (1987).

Opinion:

       A full-time judge asks about potential conflicts if they hire a personal secretary whose long-term life partner “frequently appears on matters before” the judge, after being assigned as 18-B counsel or as an attorney for the child.

       A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14). Of course, if the judge doubts his/her ability to be impartial in a particular matter, then disqualification is required.

       Ordinarily, a judge is not disqualified when an attorney related to the judge’s law clerk or secretary “within the fourth degree of relationship by blood or marriage” appears in the judge’s court (see Opinion 13-26). Rather, the judge must insulate the personal appointee from cases involving their relative or the relative’s law firm and disclose both the insulation and the relationship (see id.). After disclosure, if a party objects to the judge’s continued participation in the case, the judge has the sole discretion to decide whether to exercise recusal (see id.; Opinion 13-176; see also generally People v Moreno, 70 NY2d 403 [1987]).

       We have generally applied the same disqualification principles applicable to family members to a “person with whom the judge maintains a close familial relationship” (22 NYCRR 100.0[I]; Opinion 17-118), including a domestic partner (see Opinion 18-06). Here, we consider the prospective secretary’s long-term life partner to be the equivalent of a spouse for purposes of conflicts analysis under the Rules Governing Judicial Conduct (cf. Opinion 12-72 [noting that spouses “ordinarily reside in the same household and maintain both an emotional and financial relationship”]).

       Where an attorney for the child is the spouse of the judge’s personal appointee, we have said the judge may not approve that attorney’s payment vouchers for the work, as “doing so is likely to afford a financial benefit to the judge’s personal appointee” and thus could create an appearance of impropriety(see Opinion 13-176).¹

       Here, the inquiring judge states that this particular attorney is currently assigned as 18-B counsel or attorney for the child in a large number of cases in the judge’s part. If the judge hires the attorney’s life partner as a secretary, the judge may not approve the payment vouchers in those cases. Moreover, going forward, the judge may not assign or appoint this attorney in future cases while the conflict persists. If these limitations will significantly interfere with the judge’s performance of judicial duties, the judge should not hire the secretary.

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¹ We note that Opinion 13-176 apparently involved a one-time conflict, rather than an ongoing one.