Opinion 24-56

March 14, 2024

Digest: A judge is not disqualified from presiding in matters involving a large, regulated utility, merely because the company employs the judge’s court attorney’s spouse as a supervisory attorney in a specialized division.
(1) Where the court attorney’s spouse has had no involvement in the case, either directly or as a supervisor, the judge need not insulate the court attorney nor make any disclosure.

(2) If the spouse actually appears or has had some involvement, whether directly or as a supervisor, the judge (a) must insulate the court attorney, (b) must disclose both the relationship and the insulation, and (c) may thereafter preside in the matter, provided the judge can be fair and impartial, even if a party objects.

Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 23-117; 21-39; 15-150; 14-174; 13-26; People v Moreno, 70 NY2d 403 (1987).

Opinion:

A full-time judge’s court attorney’s spouse is the head of workers’ compensation for a large, regulated utility company.[1] His/her job responsibilities at the utility include supervising internal staff, outside counsel, and a third-party administrator; ensuring the company’s workers’ compensation programs comply with applicable regulations; overseeing all claim data; and providing “legal opinions, strategy, and recommendations” for internal clients. Although the court attorney’s spouse is a lawyer, he/she seldom appears in any court. Moreover, the judge lacks jurisdiction over workers’ compensation matters. The judge asks if it is necessary to disclose and/or insulate the court attorney in cases where the utility company is a party.

A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must therefore not allow family, social, political, or other relationships to influence their judgment or judicial conduct (see 22 NYCRR 100.2[B]), and must disqualify in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances required by rule or law (see id.; Judiciary Law § 14).

We have advised that a judge’s impartiality cannot reasonably be questioned solely because their law clerk’s fourth-degree (or closer) relative appears as an attorney (see e.g. Opinions 21-39; 14-174; 13-26).[2] The judge must, however, insulate the law clerk and disclose the relationship and insulation (see Opinion 21-39). Disqualification is not required, even if a party objects; after insulation and disclosure, the judge has sole discretion to determine if he/she can be fair and impartial (id.; People v Moreno, 70 NY2d 403 [1987]).

In matters where a law office colleague of the law clerk’s close relative appears as an attorney, our advice has varied based upon the nature of the employment. Where the relative is in private practice, we have advised that a judge’s insulation and disclosure obligations extend to the relative’s colleagues (see Opinion 13-26). If the relative works for a public law office, however, the judge’s insulation and disclosure obligations are “limited to only those cases where the attorney actually appears or has had some involvement in the case, whether directly or as a supervisor” (Opinion 23-117 [internal quotation omitted]).

We have observed that not all employment fits comfortably into the dichotomy of public and private employment, and have sometimes used a “flexible analysis” to account for a relative employed “as a private sector attorney, but outside a traditional private law firm” (Opinion 15-150 [declining to presume that a staff attorney in a large insurance company had a “common interest in the firm’s overall success and profitability” akin to that of a law firm partner or associate]).

Here, nothing in the inquiry suggests that the court attorney’s spouse, as head of workers’ compensation for a large regulated utility, would ordinarily have any cognizable financial or professional interest in cases involving the utility. Accordingly, the judge has no insulation or disclosure obligation in matters where the utility appears, unless the court attorney’s spouse actually appears or has had direct or supervisory involvement in the matter. If so, the judge must insulate the court attorney, disclose the relationship and the insulation, and may thereafter preside, provided the judge can be fair and impartial (see Opinion 21-39 [“After disclosure, if a party objects to the judge’s continued participation, the judge has the sole discretion to exercise recusal.”]).

[1] The utility is self-insured (see Workers’ Compensation Law § 50).

[2] The same principles apply here regardless of whether the judge’s staff member is a personally appointed law clerk or a career court attorney.