Opinion 21-14

January 28, 2021

Digest:         Where the judge’s spouse’s law firm has no involvement whatsoever in the case before the judge and will not share in the legal fees, the judge is not disqualified merely because the judge is aware that one of the litigants is also a current or former client of the judge’s spouse’s law firm in other matters. The judge may, in their discretion, disclose the relationship without incurring any obligation to disqualify.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); 100.3(E)(2); 1200, Rule 1.6; Opinions 20-154; 16-36; 13-54; 12-75; 99-96; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge’s spouse is a partner in a law firm that represents primarily institutional clients. The judge’s spouse is not an officer or director of these institutions and has no financial interest in them. The judge asks if recusal is required in matters involving those institutions when they are represented by other law firms. In essence, the scenario under consideration is that the judge is aware that a litigant in a case has an ongoing attorney/client relationship with the judge’s spouse’s law firm, but the spouse’s law firm has no involvement whatsoever in the matter before the judge and will not share in the legal fees.

         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 where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge is disqualified if they know that their spouse has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]). Conversely, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         In Opinion 99-96, the judge’s attorney spouse had an active tax certiorari practice, and the judge asked what to do when the spouse’s current or former tax certiorari clients appear, either pro se or with other counsel. We said the judge must disqualify in matters involving the spouse’s current clients and must disclose the relationship in matters involving the spouse’s former clients.

         In the decades since, however, we have very seldom cited Opinion 99-96, and have not relied on it for this proposition. Indeed, we recently distinguished Opinion 99-96 in concluding that a judge is not disqualified from presiding over an action merely because the judge knows that the unrepresented defendant has, in a completely unrelated legal matter, retained the judge’s sibling as counsel (see Opinion 20-154).

         On further consideration, now that the issue is squarely before us, we conclude the standard set forth in Opinion 99-96 is unduly burdensome and intrusive, as we do not believe the judge’s impartiality can “reasonably be questioned” here (22 NYCRR 100.3[E][1] [emphasis added]). First, the judge does not have any attorney/client relationship or concomitant duty of loyalty with the clients of their spouse’s law firm. Moreover, as the judge’s spouse has an independent duty of confidentiality under the attorney ethics rules (see 22 NYCRR 1200, Rule 1.6), there is little likelihood that the judge will receive client confidences or other nonpublic information that could affect the judge’s actual or apparent impartiality. Second, attempting to follow the rule set forth in Opinion 99-96 would presumably require the judge to consult a comprehensive list of the spouse’s law firm’s current and former clients in every case. While this is self-evidently burdensome for the judge, we note that it also is very intrusive on the judge’s spouse’s legal practice. In effect, the judge would need to demand full client lists from a law firm with which they themselves have no affiliation. Indeed, such a requirement could potentially adversely affect their spouse’s employment with the law firm.

         While the judge must “make a reasonable effort to keep informed” about their spouse’s personal economic interests (see 22 NYCRR 100.3[E][2]), the judge’s spouse cannot reasonably be said to have an interest that could be substantially affected by the proceeding before the judge, when the spouse’s law firm has no involvement whatsoever in the case before the judge and will not share in the legal fees. Indeed, we considered a somewhat analogous scenario in Opinion 12-75, where a case before a trial court judge “involve[d] legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters.” There, we expressly rejected the argument that “the judge’s spouse has ‘an economic and a professional interest’ in the subject matter of the proceeding currently before the judge” within the meaning of the disqualification rules, as the legal determinations of a trial court judge “do not ‘substantially affect’ the outcome of unrelated proceedings, pending before other judges, in which the inquiring judge’s spouse appears” (Opinion 12-75).

         In sum, while a judge can easily see when their spouse’s law firm is involved in a case, we believe it is unreasonable to require a judge to request and consult their spouse’s law firm’s entire list of current and former clients so the judge can disqualify or disclose when the spouse’s law firm is not involved in a case. Accordingly, we now overrule Opinion 99-96. Instead, where the judge’s spouse’s law firm has no involvement whatsoever in the case before the judge and will not share in the legal fees, the judge is not disqualified merely because the judge is aware that one of the litigants is also a current or former client of the judge’s spouse’s law firm in other, unrelated matters.¹

         Finally, while the judge has no duty to investigate, if the judge is or becomes aware of the attorney/client relationship, we note the judge remains free to disclose it as a purely prophylactic matter. Thus, should the judge exercise their discretion in favor of disclosure, the judge may continue to preside as long as they can be fair and impartial, even if a party objects or is appearing without counsel.

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¹ We remind judges that a different rule applies for current and former clients of the judge’s own law firm (see e.g. Opinions 16-36 [two-year disqualification for current and former clients of full-time judge’s former law firm]; 13-54 [noting disqualification for clients of part-time judge’s law firm continues during the representation and two years after it ends]).