Opinion 91-56

June 13, 1991

Digest:         A judge is not disqualified from presiding at a trial merely because an expert witness is a business partner of the judge’s spouse, but the judge should disclose the relationship, and, unless all parties consent, the judge should disqualify himself or herself in a non-jury trial, while disqualification is discretionary in a jury trial. The judge is disqualified from presiding over a trial in which the spouse’s employer is a party, unless all parties consent.

Rules:          22 NYCRR §§100.2(b); 100.3(c)(i) and 100.3(d)

Opinion:

         A full-time judge inquires whether disqualification is required where an expert witness, who testifies in a trial presided over by the judge, is a business partner of the judge’s spouse in connection with several rental properties which provide income, part of which is enjoyed by the judge. The expert witness was also formerly a full-time teaching colleague of the judge’s spouse.

         Section 100.2(b) of the Rules of the Chief Administrator states:

No judge shall allow his or her family, social or other relationships to influence his judicial conduct or judgment.

         Section 100.3(c)(1) of the Rules of the Chief Administrator provides:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where: (i) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; . . .

(iii) the judge knows that, he or she, individually or as a fiduciary, or his or her spouse . . . has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.

         The rules do not require the judge’s disqualification where the judge’s spouse’s business partner testifies as a witness, unless the judge feels that he or she cannot be impartial, an issue which must be determined by the judge. The judge, however, should disclose the relationship. If an objection is made in a jury case, then it is discretionary with the judge whether to disqualify himself or herself. In a non-jury case the judge should disqualify himself or herself unless all parties consent to the judge’s sitting, in view of the fact that in a non-jury case, the judge is the trier of the facts, including the weight to be given to the testimony of expert witnesses.

         As a precautionary measure, the judge should take reasonable steps to attempt to ascertain in advance of trial whether the person involved will be a witness.

         With respect to a separate issue posed by the judge, the judge is disqualified from presiding over a trial in the event that the judge’s spouse’s employer is a party to the proceeding. However, if the judge feels he or she can be impartial, instead of withdrawing from the proceeding, the judge may disclose, on the record, the basis of the disqualification. In such event the provisions of section 100.3(d) of the Rules of the Chief Administrator provide “[i]f, based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys, independently of the judge’s participation, all agree that the judge’s relationship is immaterial . . . 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.”