Opinion 94-72

September 22, 1994

Digest:         A Supreme Court justice is not in violation of any ethics rule in continuing to consider substantive matters in a pending matrimonial action, notwithstanding the fact that in a federal criminal action involving the husband as a convicted defendant, the federal district court judge vacated a sequestration order issued by the Supreme Court justice on the ground that the State matrimonial action was a “sham”.

Rule:            22 NYCRR 100.1, 100.3

Opinion:

         A matrimonial action instituted by the wife of a criminal defendant who has been convicted in the United States District Court, is presently pending before the inquiring Supreme Court justice. In the matrimonial action, the judge had issued a sequestration order relating to certain marital assets. The federal judge presiding over the criminal action vacated the sequestration order on the ground that the state divorce action is a “sham” and was instigated by the husband in order to avoid seizure of assets by the federal government.

         The matrimonial action is actively pending in the Supreme Court and the judge inquires as to whether, in view of the District Court's order, any further substantive rulings in the matrimonial action would constitute a violation of the Code of Judicial Conduct.

         The Committee is of the view that the judge may act on substantive legal matters that are before the Court in the matrimonial action. There is no violation of judicial ethics in continuing to consider the matter judicially. This would include, of course, consideration of all questions of law that might be raised, including the applicability of collateral estoppel, or of comity, with respect to the federal court order.