Opinion 90-91

October 31, 1990

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

Digest:         A judge need not affirmatively disclose the spousal relationship where the judge’s spouse is employed in a large public law office from which another attorney is appearing before the judge, but should recuse himself or herself if the spouse has any involvement with the case.

Rules:          22 NYCRR §100.3(c)(1)

Opinion:

         This Committee has been asked by a full-time judge serving in a large metropolitan county to reconsider its holding in Joint Opinion 88-101 and 88-102, which determined that judges, whose spouses are employed by the district attorney’s office or the corporation counsel’s office, should disclose on the record the employment of their spouses, whenever other attorneys from these offices are appearing before such judges.

         This Committee has reconsidered this opinion, and has determined that, at least with respect to large public law offices, the judges need not affirmatively disclose the fact that their spouses are employed as assistant district attorneys or assistant corporation counsel, as their spouses do not have “an interest that could be substantially affected by the outcome of the proceeding.” 22 NYCRR 100.3(c)(1)(iv)(b). If an objection is made by a party, it is a matter for the judge’s conscience to disqualify himself or herself. If the judge feels that he or she can be impartial, the judge need not recuse himself or herself. The judge, however, must recuse himself or herself if the spouse has had any involvement in the case, subject to the provisions governing disclosure and remittal.