Opinion 90-196

December 11, 1990

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

Digest:         A judge may appoint a law assistant whose spouse is an attorney with a legal services program which frequently appears in the judge’s court. The judge need not recuse himself or herself in cases where one attorney had helped gather petitions and distributed flyers for the judge’s election campaign.

Rules:          22 NYCRR §§100.3(c) and 100.3(d)

Opinion:

         A recently elected full-time judge asks whether the judge may appoint as the judge’s law clerk the spouse of an attorney who works with a legal services program which frequently represents clients in the judge’s court. The judge also asks if it is permissible to preside over matters handled by attorneys who had helped gather petitions and distribute flyers for the judge’s election campaign.

         In Opinion 88-140, this Committee considered the similar issues involved when a judge’s law clerk’s spouse was a member of the public defender’s office. Here, the judge may hire a law clerk whose spouse is an attorney with a legal services office, and the judge need not disclose or recuse himself or herself when other attorneys from that office appear before the judge. If, however, the law clerk’s spouse appears, the judge may preside over the case if all parties consent, and provided that the law clerk does not participate in any way in the case.

         In addition, the judge need not recuse himself or herself where attorneys, who helped gather petitions and distribute flyers for the judge’s campaign, appear before the judge, as their participation in the judge’s election campaign was minimal.