Opinion 22-133

September 8, 2022

Digest:       Where a judge knows their spouse retained counsel on a personal legal matter, and that attorney represents other clients before the judge: (1) During the representation, the judge is disqualified in matters involving that attorney, and must not preside unless the disqualification is properly remitted after full disclosure on the record. (2) Once the representation concludes and all fees are paid, and provided that the judge had no direct interest in the subject matter of their spouse’s representation, for two years, the judge must fully disclose the former representation when the attorney appears, but may then preside as long as the judge can be fair and impartial. (3) After the two-year post-representation period, the judge has no further obligation to disclose or recuse.

Rules:        Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 21-22(A); 20-115; 20-52; 14-60; 99-47.

Opinion:

         A judge asks about their disqualification obligations where the judge’s spouse is represented on a personal legal matter by an attorney who has multiple lawsuits pending in the judge’s court on behalf of other clients.¹ 

         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]). Thus, a judge must disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

We have advised that a judge is disqualified, subject to remittal, when an attorney representing the judge’s first or second-degree relative appears before the judge while the representation is ongoing (see Opinions 20-115; 20-52; 14-60). In Opinion 20-115, we explained that in such situations, the judge’s ethical obligations are usually limited to the specific attorney who is or was personally involved, either directly or in a supervisory capacity, in representing the judge’s relative (id.).² As we further explained:

Once the representation has concluded and all fees have been paid, the judge’s obligations for the first two years vary based on whether the judge is a beneficiary or otherwise has a direct personal interest in his/her spouse’s parent’s estate. If the judge has no such interest, he/she may preside over cases involving the attorney provided the judge can be fair and impartial and provided the judge discloses the former representation for a period of two years. However, when disclosure is mandated in lieu of disqualification, the judge must disqualify him/herself ... if the judge does not wish to make full disclosure; or if the judge is not legally or ethically permitted to fully disclose. Conversely, if the judge has a personal interest in the matter, he/she must continue to disqualify for two years after the representation ends. After this two-year period, regardless of whether disqualification or disclosure was required, the judge has no further obligation but may disclose the prior relationship in his/her sole discretion.

         Here, we reach the same conclusion. Thus, during the representation of the judge’s spouse, the judge is disqualified in matters involving the attorney, and must not preside unless the disqualification is properly remitted after full disclosure on the record (see Opinion 21-22[A] [noting that remittal is “a three-step process requiring full disclosure on the record of the basis for disqualification and the voluntary affirmative consent of the parties and their counsel”]; 22 NYCRR 100.3[F]). Once the representation concludes and all fees are paid, for two years, the judge must make full disclosure of the former representation when the attorney appears, but may then preside as long as the judge can be fair and impartial. After the two-year post-representation period, the judge has no further obligation to disclose or recuse.

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¹ We understand and assume, for purposes of this inquiry, that the judge has no direct interest in the subject matter of the spouse’s representation.

² Opinion 99-47 is modified to the extent that it required disqualification for the entire firm, rather than only the specific attorneys involved in representing the judge’s spouse.