Opinion 93-08

January 28, 1993

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 full-time judge need not affirmatively disclose the spousal relationship where the judge's spouse is employed in a part-time capacity as the first assistant county attorney, and is a law partner of the County Attorney, but should recuse himself or herself if the spouse has any involvement with the case.

Rule:            22 NYCRR §100.3(c)(1).

Opinion:

         This Committee has been asked by a full-time judge for an opinion concerning the necessity for disclosure or recusal by virtue of the fact that the judge's spouse is employed in the County Attorney’s Office as an assistant county attorney and is a law partner of the County Attorney of the same county where the judge sits.

         This Committee has determined, in Opinion 90-91 Vol. VI, that judges need not affirmatively disclose the fact that their spouses are employed as assistant district attorneys or assistant corporation counsels, if 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)]. Here, the judge need not affirmatively disclose the relationship of the judge's spouse to the County Attorney, but if an objection is made by a party, it is a matter for the judge's conscience to disqualify 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.