Opinion 93-28

March 11, 1993

Digest:         A judge may preside over narcotics cases where his or her spouse is secretary to the chief of the narcotics bureau in a district attorney’s office, so long as the judge discloses the relationship, and feels he or she can be impartial.

Rules:          22 NYCRR §§100.2, 100.3(c) and 100.3(a)(iv).

Opinion:

         A full-time judge who presides over criminal cases and whose spouse is employed as secretary to the chief of the narcotics bureau in a district attorney’s office, asks what are “...the parameters within which I may or may not handle narcotics cases....”

         Section 100.3(c) of the rules of the Chief Administrator governs disqualification and provides that:

(1) A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, ...;

         Section 100.2 of the Rules provides that:

(a) A judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(b) No judge shall allow his or her family, social, or other relationship to influence his or her judicial conduct or judgment...

         These rules do not require a judge’s disqualification unless the spouse offers evidentiary information regarding a proceeding, is likely to be a material witness, has a financial interest in the outcome of the matter, or is a party or attorney to the proceeding. Although recusal is not required in this instance, the judge must always determine whether he or she can remain entirely impartial in view of the spouse’s employment, and if there is any doubt, in that event, the judge should recuse himself or herself. It is assumed that the spouse is bound by office confidentiality and will not discuss any case files with the judge, and the judge may not discuss these matters with his or her spouse.

         The judge must disclose the relationship, but need not disqualify himself or herself per se. The judge should strictly comply with 100.3(a)(4), which forbids “ex parte or other communications concerning a pending or impending matter.”