Opinion 93-116

December 9, 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 judge shall recuse himself or herself from all cases in which the judge’s spouse has any involvement as an assistant district attorney, subject to a remittal of disqualification. The judge is disqualified unconditionally from presiding over any cases begun by the District Attorney’s office while the judge was an assistant district attorney in that office in which the judge personally participated in any way, but not otherwise.

Rules:          22 NYCRR 100.3(c)(1) ; 22 NYCRR 100.3(d) .

Opinion:

         A full-time judge, who primarily presides over criminal cases, serves in a county with a district attorney whose staff has 20 assistants including the judge’s spouse. The judge, prior to assuming judicial office, also served as an assistant in the same district attorney’s office.

         The judge asks whether recusal is required in cases in which the spouse (1) presented the matter to the Grand Jury, (2) conducted the preliminary hearing in the local criminal court, or (3) only screened the file as the case entered the criminal justice system.

         The judge also asks whether it is ethically proper to preside over matters for which the district attorney’s office obtained indictments while the judge still was an assistant district attorney in that office.

         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:

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(v) the judge or the judge’s spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person is acting as a lawyer in the proceeding.

         In Opinions 93-08, Vol. X and 90-91, Vol. VI, this Committee stated that a judge whose spouse serves as a district attorney must recuse himself or herself from a case if the spouse had “any involvement in the case.” It is the opinion of this Committee that the inquiring judge’s impartiality might reasonably be questioned if the judge presides over cases in which the judge’s spouse had any involvement as an assistant district attorney, including screening the case (such as deciding whether to send the case to a superior criminal court, or taking statements from witnesses). Accordingly, the judge should disqualify himself or herself from all such cases, subject to remittal of disqualification pursuant to section 100.3(d) .

         As for cases indicted, or begun by an arrest, while the judge was still a member of the district attorney’s staff, the judge may not adjudicate such cases under any circumstances if the judge in any way participated personally in the cases. Remittal of disqualification is not available in such cases. However, the judge is not barred from presiding over cases in which the judge had no personal involvement of any kind.