Opinion 95-35

March 9, 1995

Digest:         A judge should recuse himself/herself in cases involving appearances by a law firm, where the judge’s spouse, who is a lawyer, has a continuing counsel relationship with the law firm, and not merely a retainer interest in occasional, separate, discrete cases.

Rules:          22 NYCRR 100.2; 100.3(c)

Opinion:

         The spouse of a full-time judge is considering an invitation to become counsel to a law firm which has clients needing assistance in immigration law, which is the spouse’s specialty. As stated by the judge, “The firm does a good deal of litigation, and in the future might very well have cases which are assigned to my court.” The judge asks whether recusal is mandated “in all cases that the firm might have in my court.”

         Further, the judge asks: “... if the firm in question or one of its partners were counsel to my [spouse’s] firm on litigation matters would that relationship mandate recusal on all cases the firm might have in my court.?”

         The Committee is of the view that the propriety of presiding in such instances depends on the facts of the relationship between the judge’s spouse and the firm. If it is a continuing counsel relationship, evidenced, for example, by a shared letterhead and other indicia, rather than merely a retainer interest in occasional, discrete, separate cases, recusal is required.