Opinion 23-90

Short-Form Opinion

September 7, 2023

Question:    Must a part-time attorney judge disqualify in matters involving a prosecutor whose spouse is a partner in the judge’s own law firm? 

Discussion:  While a judge “shall not permit his or her partners or associates to practice law in the court in which he or she is a judge” (22 NYCRR 100.6[B][3]), this prohibition does not include the spouse or other relatives of such partners or associates.  Nor is disqualification mandated under Section 100.3(E)(1)(a)-(f).  Indeed, in similar circumstances, we have said a judge’s impartiality cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) in a case merely because an assistant district attorney is married to the judge’s law firm partner or a private attorney is the sibling of the judge’s law firm associate.  On the facts presented, we conclude this judge need not disqualify or disclose in matters prosecuted by an attorney who is married to the judge’s law partner, provided the judge is satisfied he/she can be fair and impartial.[1]  Such decisions are left entirely to the judge’s discretion.

Enclosed:    Opinions 15-86; 13-49; 11-125.

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[1] Whether a judge’s social relationship with an attorney warrants disclosure or disqualification depends on such factors as the nature of the relationship with the attorney and the frequency of their contacts.  Here, the Committee does not have any facts to indicate that the relationship in this instance is more than that of a social acquaintance between the judge and the prosecutor being the spouse of a partner in the judge’s law firm.  A detailed analysis of this issue can be found in Opinion 11-125, which sets forth three categories of social relationships.