Opinion 25-26

February 6, 2025

Digest:   On these facts, a family court judge whose spouse’s law firm has contracted with the county to provide non-exclusive legal representation to its Department of Children and Family Services:
(1) is disqualified from presiding over any family court proceedings involving that agency; and
(2) may not preside over emergency applications in cases where the spouse’s law firm previously appeared, even though the firm does not appear on the emergency application.

Rules:    22 NYCRR 100.2; 100.2(A)-(C); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(e); Opinions 24-83; 21-14; 19-93; 17-97; 16-130; 16-120.

Opinion:

          A family court judge’s spouse is the owner and senior partner of a law firm that has recently contracted to provide non-exclusive legal representation for the county’s Department of Children and Family Services (“DCFS”).  The judge asks about two potential conflicts arising from this contract.

          A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge may not allow family or other relationships to influence judicial conduct or judgment (see 22 NYCRR 100.2[B]).  The judge also must not lend the judicial prestige to advance private interests; nor convey or permit others to convey “the impression that they are in a special position to influence the judge” (22 NYCRR 100.2[C]).  In matters where a “judge’s impartiality might reasonably be questioned,” the judge must disqualify (22 NYCRR 100.3[E][1]).  This includes when the judge knows the judge’s spouse “has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]) or “is acting as a lawyer in the proceeding” (see 22 NYCRR 100.3[E][1][e]).

1. DCFS Cases, Where Agency Is Represented By Other Counsel

          The judge first asks if he/she may preside in family court cases involving DCFS where the spouse’s firm does not appear as counsel. 

          In Opinion 21-14 we considered a judge’s obligations in a matter involving a client of the judge’s spouse’s law firm, but not the law firm itself, and concluded (emphasis added):

[W]here the judge’s spouse’s law firm has no involvement whatsoever in the case before the judge and will not share in the legal fees, the judge is not disqualified merely because the judge is aware that one of the litigants is also a current or former client of the judge’s spouse’s law firm in other, unrelated matters.

          We nonetheless reach a different result here on the unusual facts presented.  As the owner and senior partner of the law firm that has contracted with the county and DCFS to provide legal representation, the inquiring judge’s spouse has significant interests, economic and otherwise, in DCFS proceedings and is likely to act as an attorney in them.  Further, the contract between the spouse’s firm and DCFS may create an impression that DCFS is in a special position to influence the judge through his/her spouse, notwithstanding that it is non-exclusive.  These interests and impressions raise a reasonable question as to the judge’s impartiality (cf. Opinions 17-97 [judge must disqualify when outside counsel for first-degree relative’s real estate management company appears]; 16-130 [judge must disqualify when outside law firm for spouse’s not-for-profit entity appears, in light of the spouse’s direct involvement with the firm]).  Accordingly, we conclude the judge must disqualify him/herself from presiding over any family court case involving DCFS.

2.  Emergency Applications, In Matters Where Spouse’s Firm Previously Appeared

          When assigned on a rotating schedule as the “emergency judge,” the judge asks if he/she may preside in an emergency application in which the spouse’s firm does not personally appear, but the judge knows it is a matter where the firm has previously appeared.

          We have advised that “[w]here a ground for disqualification exists … a judge ordinarily must not preside, even in matters that appear to be routine, mundane, uncontested or ministerial in nature” (Opinion 16-120 [internal quotation marks omitted]).  Nor does a change of counsel necessarily relieve a judge of the obligation to disqualify (see Opinions 24-83; 19-93).  Here, we conclude the judge may not preside over emergency applications in cases where the spouse’s firm previously appeared, even though the firm does not personally appear on the emergency application.