Opinion 22-16

January 27, 2022

Digest:         A judge need not disqualify from a custody case merely because the judge’s confidential secretary has connections to both parties through marriage, but must insulate the secretary from any involvement in the matter. If a party objects to the judge’s participation in the case, the judge has the sole discretion to decide whether to exercise recusal.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 19-72; 16-99; 13-26; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge is presiding in a custody case in which the judge’s secretary has personal connections to both sides through marriage. Specifically, the secretary was formerly married to one party and formerly married to an ex-partner of the other party.

         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]). A judge must also disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         Where a judge’s staff member has a conflict, “it is ordinarily sufficient to insulate the staff member and disclose the insulation” (Opinion 19-72). Thus, for example, we have said a judge may preside in matters where the spouse of the judge’s law clerk or secretary appears as counsel, subject to insulation of the court employee and disclosure of the relationship (see Opinion 13-26; accord e.g. Opinion 16-99 [applying the same standard to the attorney spouse of the chief clerk]). Here, too, we believe the judge’s impartiality cannot “reasonably be questioned” based on the secretary’s personal connections with both sides in the custody case (22 NYCRR 100.3[E][1] [emphasis added]).

         Accordingly, this judge need not disqualify merely because the judge’s confidential secretary has connections to both parties through marriage, but must insulate the secretary from any involvement in the matter. Because disqualification is not mandatory here, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]) even if a party objects to the judge’s participation.