Opinion 91-39

March 14, 1991

Digest:         (1) A judge’s spouse has no veto power over the judge’s obligation to comply with valid disclosure regulations and to furnish information about the spouse’s finances. (2) A judge may hold pre-trial conferences, but may not have ex parte conversations, without the consent of all attorneys and parties.

Rules:          22 NYCRR 100.2(a); 100.3(A)(4).  

Opinion:

         A full-time judge asks (1) if there is any breach of judicial ethics if a judge submits a financial disclosure settlement to the Ethics Commission of the Unified Court System, without disclosing the spouse’s finances, if the spouse refuses to permit disclosure of his or her own finances. The judge states that the judge would certify that none of the information concerning the spouse would indicate any conflict of interest with the judge’s fulfillment of judicial duties.

         The Committee does not pass on the question of law as to the judge’s duty to report his or her spouse’s finances on the financial disclosure statement required by the Ethics Commission. However, Section 100.2(a) of the Rules of the Chief Administrator requires that “a judge shall respect and comply with the law.” Thus, the judge’s spouse has no veto power over the judge’s obligation to comply with valid disclosure regulations and to furnish any required information as to the spouse’s finances.

         The judge also asks (2) to what extent a judge may preside over pre-trial settlement negotiations, and whether the judge first must obtain the content of the attorneys to talk to each side separately.

         Section 100.3(a)(4) of the Rules of the Chief Administrator provides that “a judge shall accord to any person who is legally interested in a matter, or his or her lawyer, full right to be heard according to the law, and except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending matter.”

         There is no ethical breach in a judge’s holding pretrial settlement conferences. However, there should be no ex parte conference with one side without the consent of all attorneys or parties.