Opinion 24-165

October 30, 2024

Digest:  Where a judge’s spouse retired from a law firm several years ago but still remains listed on the firm’s website as “of counsel,” receives limited secretarial services, and obtains insurance through the firm, the judge must disqualify in matters involving the law firm.

Rules:   22 NYCRR 100.2; 100.2(A), (B); 100.3(E)(1); 100.3(E)(1)(c); Opinions 21-48; 21-29; 18-118; 15-33; 04-42; 99-146; 95-35.

Opinion:

          The inquiring judge asks if he/she must disqualify in matters involving his/her spouse’s former law firm.  The judge’s spouse retired from partnership in the firm over five years ago and has not practiced law with the firm since retirement.  However, the spouse’s biography remains listed on the firm’s website with “of counsel” status, and the spouse “has access to limited secretarial assistance.”  The judge’s spouse uses the firm’s secretarial assistance for “firm-related administrative matters” such as bar renewal and insurance renewal, and to pass along any e-mails that may come to the spouse’s old law firm email address, if appropriate.  The judge’s spouse also (1) receives a pension from a trust funded by the firm for that purpose, unconnected to the firm’s financial performance, (2) purchases health, life and personal excess liability insurance for their family through the firm, without contribution by the firm, and (3) remains covered under the firm’s travel accident insurance policy, albeit at no extra cost to the firm.

          A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge must not allow family, social, or other relationships to influence his/her judicial judgment or conduct (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]), including when the judge knows that the judge’s spouse has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]).

          Where a judge’s attorney spouse has “a continuing counsel relationship with [a] law firm, and not merely a retainer interest in occasional, separate, discrete cases,” the judge must disqualify in all matters involving that law firm (Opinion 95-35).  We noted that such a “continuing counsel relationship” may be “evidenced, for example, by a shared letterhead and other indicia” (id.).  Conversely, where the attorney spouse is “employed on an occasional, part-time, per diem basis” by a law firm, the judge need not disqualify unless the spouse “has had any involvement in the case” (Opinion 99-146). 

          In at least two prior opinions we applied a similar standard to a lingering financial connection between the judge’s spouse and the spouse’s former law firm.  In Opinion 15-33, where the judge’s spouse left a law firm to open a new practice, we concluded that the spouse’s “residual fee relationship” with the firm on eight discrete cases did not rise to a level warranting the judge’s disqualification in all matters involving the firm.  Likewise, where the judge’s spouse left his/her former law firm amid a contract dispute approximately five years ago “and has subsequently appeared as opposing counsel to the spouse’s former law partner,” we concluded that the “discrete periodic payments” owed by the firm to the judge’s spouse for previously earned legal fees “do not raise reasonable questions” about the judge’s ability to be fair and impartial in matters involving the spouse’s former law firm (Opinion 21-48).

          Here, although the judge’s attorney spouse formally retired from the law firm over five years ago, the spouse’s biography is still posted on the law firm’s website with the title “of counsel.”  The spouse also uses the firm’s secretarial assistance for firm-related administrative matters, bar renewal, and insurance renewal.  Even if the spouse does not check his/her old law firm email personally, the law firm’s secretarial staff undertakes this activity on the spouse’s behalf and forwards those emails to the spouse.  The spouse also receives the benefit of travel insurance free of charge from the firm.  Likewise, the judge’s spouse receives a pension and maintains an ongoing business and financial relationship with his/her former firm by purchasing and paying premiums for health, life and personal excess insurance through the law firm (cf. Opinions 21-29 [concluding judge who is beneficiary of pension through prior private sector employer maintains financial connection to that employer]; 18-118 [advising judge receiving ongoing fixed annual retirement benefits from former law firm is disqualified in cases in which the firm appears]; 04-42 [advising judge disqualified in cases in which former law firm appears due to ongoing fixed monthly pension payments]). 

          On these facts, we cannot say the judge’s spouse has severed his/her business and financial relationship with the law firm so that any remaining connections are merely “occasional” and “discrete” (cf. Opinions 21-48; 15-33).  To the contrary, the connections appear to be continuing in nature, consistent with the spouse’s formal “of counsel” status. 

          In our view, the continued presence of the spouse listed as “of counsel” to the firm, in addition to the use of secretarial services and obtaining insurance through the firm creates at least an appearance of a “continuing counsel relationship.”  As such, we conclude the judge must disqualify in matters involving the law firm.