Opinion 21-48

March 11, 2021

Digest:         (1) Where a judge’s spouse ceased employment with a law firm approximately five years ago and has subsequently appeared as opposing counsel to the spouse’s former law partner, the judge need not disqualify in unrelated proceedings involving the spouse’s former law partner or law firm, notwithstanding the partner’s threats to file a grievance or lawsuit against the judge’s spouse, unless and until (a) the grievance committee commences formal disciplinary proceedings against the judge’s spouse based on the partner’s complaint and/or (b) a formal adversarial legal proceeding is commenced concerning the dissolution of the financial or business relationship.

(2) Where an attorney alleges in a recusal motion that the judge and the attorney previously had a close social relationship which subsequently deteriorated into an adversarial relationship, the judge should fully disclose the nature and extent of that relationship so that a determination can be made whether recusal is required under such circumstances.

Rules:          Judiciary Law §§ 9; 14; 90(10); 22 NYCRR 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 21-22(A); 20-63; 16-129; 16-36; 15-169; 15-33; 11-125; 11-45; 10-168.

Opinion:

         The inquiring judge is presiding in a case in which the judge’s spouse’s former law partner is representing one of the parties. The judge’s spouse previously was employed by the partner’s law firm approximately 5 years ago. At that time, the judge was a practicing attorney and assisted with the spouse’s contract on leaving the firm. The partner recently asked the judge to recuse due to (1) the partner’s filing of a disciplinary complaint against the judge’s spouse in connection with a recent case where they were opposing counsel; (2) the partner’s “potential actionable claims” against the judge’s spouse; (3) the law firm’s periodic compensation of the spouse for legal work previously performed; and (4) an allegedly “adversarial” relationship between the judge and the partner, although the judge disagrees with this assessment. The judge is satisfied they can be fair and impartial, and is willing to preside, but asks if disqualification is ethically mandated here.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must not allow familial, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

1. Disciplinary Complaint Against Judge’s Spouse

         The partner advises that they filed a disciplinary complaint against the judge’s spouse for alleged misconduct in a recent case where the partner and the judge’s spouse were opposing counsel. At this time, however, the grievance committee has neither contacted the judge’s spouse about the complaint nor commenced formal disciplinary proceedings.

         We have said that a judge’s impartiality cannot reasonably be questioned merely because an attorney or litigant files a disciplinary complaint against the judge (see e.g. Opinion 16-129). Rather, the threshold for disqualification is when the Commission on Judicial Conduct makes its own determination about the gravity of the allegations and initiates formal disciplinary proceedings against the judge, thereby “evidencing a degree of seriousness beyond mere judge-shopping concerns” (id.).

         We believe similar principles should apply here. Accordingly, the judge need not disqualify merely because the partner filed a disciplinary complaint against the judge’s spouse unless and until the grievance committee commences formal disciplinary proceedings against the spouse based on the partner’s complaint.¹

2. Potential Actionable Claims Against Judge’s Spouse

         The partner purports to have “potential actionable claims” against the judge’s spouse arising from the circumstances of the spouse’s departure from the firm approximately five years ago. The alleged claims do not appear to involve the judge. However, neither the partner nor the law firm has filed any lawsuit concerning these purported claims. The judge’s spouse also has not commenced any such lawsuit.

         We have previously considered the reverse situation, where a judge’s spouse retained counsel and is considering making a claim against a municipality for personal injuries the judge witnessed (see Opinion 10-168). In that instance, we said the judge need not exercise disqualification from matters in which the municipality is a party unless and until their spouse files the notice of claim (id.). At that point, the judge is disqualified, subject to remittal, in matters involving the municipality while the matter is pending (id.). Thereafter, for two years after the matter is concluded, the judge must make full disclosure when the municipality is a party (id.).

         Here, too, we believe the judge need not disqualify merely because the partner purports to have “potential actionable claims” against the judge’s spouse concerning the dissolution of the financial or business relationship unless and until a formal adversarial legal proceeding is commenced (id.). At that point, the judge is disqualified, subject to remittal, from the date of the commencement of the proceeding until the matter is concluded (see Opinions 10-168; 20-63). Thereafter, for two years, disclosure is mandatory, but the judge then has discretion to preside, even if a party objects (see id.). These principles apply even when a party is appearing without counsel (see Opinion 21-22[A]).

3. Periodic Compensation of Spouse for Prior Legal Work

         The judge’s spouse is still owed compensation for legal work previously performed while at the firm. By agreement, the firm must “issue quarterly payments to the Spouse for payments received by [the firm] for” the spouse’s prior legal work.

         In Opinion 15-33, we said a judge need not disqualify or disclose the spousal relationship when the judge’s spouse’s former law firm appears before the judge on matters in which the spouse had no involvement, even though the law firm maintains a fee interest in eight other matters handled by the spouse.

         Here, too, we believe the discrete periodic payments to the judge’s spouse for legal fees previously earned do not raise reasonable questions about the judge’s ability to be fair and impartial in matters involving the spouse’s former law firm or its attorneys.² This conclusion is further strengthened if the firm is essentially serving as a conduit for clients’ payments to the judge’s spouse for legal work the spouse performed several years ago (cf. Opinion 15-169).

4. Relationship Between Judge and Partner

         Finally, the partner alleges, in a recusal motion, that the judge and the partner previously had a “close social relationship” which subsequently deteriorated into an adversarial relationship after a “heated” conversation several years ago concerning the spouse’s contract terms. The partner alleges they “were shouting at each other” during that conversation. However, according to the judge, this recitation is inaccurate. From the judge’s perspective, their prior social relationship was in fact very limited and “strictly in furtherance of the Spouse’s career” and the judge never shouted at the partner at any time. Moreover, the judge says they “neither harbor nor display ill will” toward the partner.

         In our view, the judge “is ordinarily in the best position to assess whether in a particular proceeding the judge’s impartiality might reasonably be questioned due to involvement of an attorney whom the judge knows socially” (Opinion 11-45). However, the judge should take into account factors such as “the nature of the relationship” as well as “the frequency and the context of their contacts” (id.; see also Opinion 11-125 [discussing many prior opinions]). As explained in Opinion 11-125 (citations omitted):

Clearly, a judge who cannot be impartial when a particular attorney appears before the judge must disqualify him/herself, and remittal is not available. However, even when a judge’s disqualification is not mandated by either Judiciary Law §14 or the specific circumstances described in §100.3(E)(1)(a)-(e) of the Rules, and the judge believes that he/she can be impartial, if the judge’s impartiality might reasonably be questioned by others, he/she must nonetheless disqualify him/herself, but, in such circumstances, the disqualification is subject to remittal. Whether a judge’s friendship with an attorney causes a judge’s impartiality reasonably to be questioned depends on the facts of each case.

         Where, as here, an attorney makes apparently serious allegations in a recusal motion that the judge and the attorney previously had a close social relationship which subsequently deteriorated into an adversarial relationship, we believe “the judge should, at the very minimum, disclose the nature and extent of that relationship ‘so that a determination can be made whether under such circumstances, there is to be an informed consent to the judge’s presiding, or whether recusal’ is required” (Opinion 11-45 [citations omitted]). The judge’s disclosure must be made on the record and include all the facts concerning the judge’s relationship with the attorney.

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¹ Judiciary Law § 9 states: “no judge shall be required to provide a reason for such recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.” We assume this would apply where a judge is disqualified because of a disciplinary proceeding against the judge’s spouse, regardless of the judge’s conclusion about how to resolve the apparent conflict between the confidentiality protections of Judiciary Law § 90(10) and the disclosure requirement of Judiciary Law § 9.

² We remind judges that a different rule applies for the judge’s own former law firm, as the judge must disqualify in all matters involving the law firm and its clients for two years after “the date on which the financial relationship between the judge and the law firm completely ends” (Opinion 16-36 [emphasis added]).