Opinion 23-46
May 4, 2023
Digest: Where a judge’s spouse is the Corporation Counsel and thus the head of the agency and/or attorney of record for the office:
(1) In general, the judge must disqualify from any case involving the Corporation Counsel’s office. However, this disqualification may be subject to remittal after full disclosure on the record, provided the judge’s spouse remains permanently absent from the courtroom.
(2) In civil or criminal matters involving a subpoena for records of a city office or for testimony of a city employee (including the city police), if any attorney from the Corporation Counsel’s office appears, the judge is disqualified. However, this disqualification may be subject to remittal after full disclosure on the record, provided the judge’s spouse remains permanently absent from the courtroom.
(3) The judge generally may preside in criminal cases when the Corporation Counsel’s office is not prosecuting or otherwise appearing in the case, even if the arrest was made by a city employee.
(4) When a part-time assistant corporation counsel appears as a privately retained attorney, disclosure is sufficient, provided the judge’s spouse has no involvement or interest in the matter.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(e); 100.3(E)(1)(e)(i)-(ii); 100.3(F); Opinions 21-22(A); 18-27; 10-05; 07-216; 05-87; 98-29.
Opinion:
The inquiring judge’s spouse is the Corporation Counsel for a particular city. The office has at least one part-time assistant corporation counsel who also maintains an outside legal practice. The judge asks if they may preside in the following circumstances:
1. In civil matters, when a party “moves the Court for a subpoena duces tecum for records from [a city] office” or “serves a subpoena ad testificandum upon [a city] employee, in his or her official capacity;”
2. In criminal matters where the Corporation Counsel is not the prosecuting agency, but the matter (a) is based on an arrest by city police or other city employees; (b) involves a motion for a subpoena duces tecum for records from the city police department or other city office; or (c) involves a subpoena ad testificandum on a city police officer or other city employee, in their official capacity.
3. In matters where an assistant corporation counsel appears on behalf of a private client.
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 disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge’s spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]). As a judge’s spouse is within the second degree of relationship, (i) the judge must disqualify “without the possibility of remittal if such person personally appears in the courtroom during the proceeding or is likely to do so,” but (ii) “may permit remittal of disqualification provided such person remains permanently absent from the courtroom” (id.). Of course, if the judge doubts their ability to be fair and impartial in a particular matter, the judge must not preside.
When a judge’s spouse holds a supervisory position in a public law office, the exact scope of the judge’s disqualification obligations vary based on the spouse’s role at the agency (see e.g. Opinion 18-27 [discussing prior opinions]). Where the spouse is the head of the office, and thus the attorney of record, the judge is disqualified in all matters involving that office (see Opinions 10-05; 07-216; 05-87; 98-29).
This judge must therefore disqualify from any case involving the Corporation Counsel’s office, because the judge’s spouse is deemed to be involved either directly or indirectly in all cases in which the Corporation Counsel’s office appears (see id.). If an assistant corporation counsel is appearing on behalf of the office, this disqualification may be subject to remittal after full disclosure on the record, provided the judge’s spouse “remains permanently absent from the courtroom” (22 NYCRR 100.3[E][1][e][ii]; 100.3[F]).[1]
As to civil or criminal matters involving a subpoena for records of a city office or for testimony of a city employee (including the city police), the judge is disqualified if any attorney from the Corporation Counsel’s office appears. Again, where an assistant corporation counsel is appearing on behalf of the office, the disqualification may be subject to remittal after full disclosure on the record (see id.).
Conversely, we conclude the judge may preside in criminal matters where the Corporation Counsel is not the prosecuting agency and is not otherwise appearing in the case, even if the arrest was made by a city employee.
When a part-time assistant corporation counsel appears as a privately retained attorney, on a matter unrelated to the Corporation Counsel’s office, the judge must make full disclosure of the relationship between the judge’s spouse and the assistant corporation counsel (see Opinion 10-05). Assuming the judge’s spouse has no involvement or interest in the matter, disclosure is sufficient. Whether to exercise recusal upon a party’s request is solely within the judge’s discretion (see id.).
[1] Remittal under Section 100.3(F) is a three-step process requiring full disclosure on the record and voluntary affirmative consent by the parties and, if represented, their counsel (see Opinion 21-22[A]).