Opinion 88-140

December 8, 1988

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

Topic:          Disqualification; spouse of county court judge’s law clerk is an assistant public defender.

Digest:         County court judge, whose law clerk is married to an assistant public defender, need not recuse himself in cases in which the spouse or any other member of the public defender's office appears, but when the spouse appears, the judge must disclose the employment of the law clerk's spouse to all parties and their attorneys, and obtain their consent as judge, in writing or on the record, to his continued participation, and must completely insulate the law clerk from participation in the case.

Rules:          22 NYCRR §§100.3(c(1)(iv); 100.3(d)

Opinion:

         The law clerk to a county court judge is married to an assistant county public defender, who will be representing indigents. The county judge inquires whether the relationship between the law clerk and the public defender's office would disqualify the judge from presiding in criminal actions or proceedings in which a party is represented by the law clerk's spouse or by another attorney in the public defender’s office.

         If the judge harbors any doubts as to his own ability to be impartial, the judge should not preside in the matter. If the judge is satisfied that he can impartially preside over cases in which the law clerk's spouse or other assistant public defenders appear, there is no per se requirement for disqualification. The fact that his law clerk is married to an assistant public defender does not disqualify the judge from presiding over all cases or matters in which the public defender's office appears. However, at least when the law clerk's spouse is personally involved as attorney, the judge should reveal his law clerk's relation with the public defender's office, and obtain the consent of the parties to his continued participation in the action or proceeding , utilizing the procedure set forth in section 100.3(d) of the Rules of the Chief Administrator.

A judge disqualified by the terms of subparagraph (c)(1)(iii) or (iv) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If, based on such disclosure, the parties by their attorneys, independently of the judge's participation, all agree that the judge's relationship is immaterial or that his or her financtsl interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.

         In addition, when the spouse of the law clerk personally appears as an attorney in a matter before the judge, and when the judge continues to preside in accordance with the guidelines mentioned above, the judge also must completely insulate the law clerk from any participation in the case. See Opinion 548 of the New York State Bar Association, dated February 9, 1983 [holding that a judge need not disqualify himself where a party's attorney is the spouse of a law clerk to the judge, as long as the law clerk does not participate in that case].