Opinion 24-191

December 12, 2024

Digest: (1) Where a judge’s spouse heads the public defender’s office, the judge is disqualified in all matters involving that office. The disqualification is subject to remittal only if the judge’s spouse remains permanently absent from the courtroom.

(2) Where a Family Court judge’s spouse is an assistant public defender who works exclusively on felony criminal trials and has no direct or indirect supervision of the assistant public defender who appears in Family Court:
(a) The judge may preside in Family Court matters where the public defender’s office represents the defendant, provided there is no related felony criminal proceeding, the judge concludes he/she can be fair and impartial, and the judge’s spouse is not involved in the case.

(b) Where the public defender’s office is handling both a Family Court case and a related felony criminal case in another court, the judge is disqualified in the Family Court case, but may permit remittal of disqualification if his/her spouse remains permanently absent from the courtroom.

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 23-46; 21-22(A); 19-150.

Opinion:

The inquiring Family Court judge[1] is married to the attorney who currently heads the county public defender’s office. The judge’s spouse does not personally handle matters in Family Court but supervises an assistant public defender who does so. The judge’s spouse is willing to accept a different position within the public defender’s office to alleviate the judge’s disqualification obligations. We address the judge’s specific questions below.

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 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 his/her ability to be fair and impartial in a particular matter, the judge must not preside.

1. Judge’s Spouse is the Public Defender

The judge asks if he/she must disqualify from all matters involving the public defender’s office, regardless of whether the spouse has direct personal knowledge or involvement in the matter, while the judge’s spouse heads the public defender’s office.

While the judge’s spouse heads the public defender’s office, the judge is disqualified in all matters involving that office (see Opinion 23-46). However, the disqualification may be subject to remittal after full disclosure on the record, “provided the judge’s spouse remains permanently absent from the courtroom” (id.; 22 NYCRR 100.3[E][1][e][ii]).

As a reminder, remittal under Section 100.3(F) is a three-step process requiring full disclosure on the record and voluntary affirmative consent by all parties and, if represented, their counsel (see Opinion 21-22[A] [citations omitted]):

Remittal, where permitted, is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

2. Judge’s Spouse is an Assistant Public Defender Who Does Not Directly or Indirectly Supervise Family Court Cases

As described in the inquiry, the judge’s spouse is willing to resign as “the” Public Defender in favor of the spouse’s current second-in-command. The judge’s spouse would then accept a new assistant public defender role, in which he/she would continue to handle felony criminal trials[2] but would no longer have any supervisory responsibilities whatsoever over the assistant public defender who appears in Family Court, and would have no direct or indirect involvement in that attorney’s cases. The judge asks if this arrangement will allow him/her to preside in matters where that assistant public defender appears.

Once the judge’s spouse no longer heads the public defender’s office and takes a new position working exclusively on felony criminal trials, with no direct or indirect supervision of the assistant public defender who appears in Family Court, the judge may preside in Family Court matters where the public defender’s office represents the defendant, provided there is no related felony criminal proceeding, the judge concludes he/she can be fair and impartial, and the judge’s spouse is not involved in the case (see Opinion 19-150).

Where the public defender’s office is handling both a Family Court case and a related felony criminal case in another court, the judge is disqualified in the Family Court case (see id.). Again, this disqualification may be subject to remittal if the judge’s spouse remains permanently absent from the courtroom (see id.; 22 NYCRR 100.3[E][1][e][ii]). As previously noted, remittal under Section 100.3(F) is a three-step process requiring full disclosure on the record and voluntary affirmative consent by all parties and, if represented, their counsel (see Opinion 21-22[A]).

[1] The inquirer is a judge-elect, but the questions presented relate exclusively to the inquirer’s obligations after assuming judicial office, so we refer to him/her as a “judge” for simplicity.

[2] The inquiry suggests the inquirer’s spouse would “second chair” these trials—from a judicial ethics perspective, it is immaterial here whether he/she is deemed to be “first chair” or “second chair”.