Opinion 90-130

September 18, 1990

Digest:         A part-time judge may preside in matters where an attorney appearing in the court is the spouse of the deputy court clerk, provided that appropriate procedures are followed.

Rules:          22 NYCRR §§100.2.(c) and 100.3(b)(2)

Opinion:

         A part-time judge inquires whether the judge may preside in cases where an attorney for one party is the spouse of the deputy clerk of that court.

         Section 100.2(c) of the Rules of Judicial Conduct provides:

No judge shall lend the prestige of his or her office to advance the private interest of others; nor shall any judge convey or permit others to convey the impression that they are in a special position to influence his or her.

         Section 100.3(b)(2) of the rules further provides:

A judge shall require his or her staff and court officials subject to his or her direction and control to observe the standards of fidelity and diligence that apply to the judge.

         Since the court has at least two clerks, and to avoid the appearance of impropriety and favoritism resulting from the deputy court clerk’s involvement in any cases where that clerk’s spouse appears, such cases should be referred to another court clerk. Furthermore, the deputy clerk who is the subject of this inquiry should be instructed to avoid any contact with the case, its files or documents, and should not appear in the courtroom while the clerk’s attorney-spouse appears.

         The Committee concludes that it is unnecessary for the judges of the court to remove themselves from any matters involving the deputy court clerk’s spouse, provided the above procedures are followed.

         This situation differs from the one addressed in Opinion 90-68, where this Committee found that a judge should not preside over cases handled by a law firm which also employed the only clerk in the court. In contrast, the court clerk is not employed by the law firm, and this court has other clerks who can handle the matter.