Opinion 88-105

October 27, 1988

Topic:          Propriety of town justice presiding over cases involving a bank where his/her spouse is employed.

Digest:         A town justice may decide cases where one party is a bank which employs his/her spouse as secretary, provided the judge discloses the relationship to both parties and neither party objects.

Rule:            22 NYCRR §§100.3(c)(iii)

Opinion:

         A town justice inquires as to the propriety of presiding over cases where one of the parties is a bank where his/her spouse is employed as a secretary. The judge states that neither the judge nor his/her spouse have any financial interest in the bank.

         While a disqualification would result if the judge or his/her spouse had a financial interest in the bank [22 NYCRR §100.3(iii)], a secretarial employment by the bank does not rise to the level of interest that could be substantially affected by the outcome of the proceeding” [22 NYCRR §100.3(iii)] sufficient to disqualify the judge from deciding the case. The New York State Commission on Judicial Conduct, however, found in the Matter of Robertiello (February 23, 1988), that a judge should disqualify himself in a matter where his wife was employed by the defendant, as his impartiality could be questioned. The Commission’s opinion did not discuss the availability of a waiver of disqualification pursuant to section 100.3(d).

         Here, the judge should reveal the relationship of his/her spouse to the bank and permit the parties and their attorneys to request that he/she withdraw from further participation in the matter. The judge should withdraw from the case, if requested. However, the judge may preside if the parties give written consent to waive disqualification as permitted by section 100.3(d).

         This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.