Opinion 96-85

September 5, 1996

Digest:         A judge who sits both in County Court and Surrogate’s Court is not disqualified from presiding over County Court or Surrogate’s Court matters in which an attorney, who is the spouse of the Chief Clerk of Surrogate’s Court, appears on behalf of a client, provided that, in both instances, appropriate procedures insulating the Chief Clerk from such matters are followed.

Rules:          22 NYCRR 100.2 (c) and 100.3(c)(2); Opinions 94-49, 90-130

Opinion:

         A judge who serves both as County Court judge and Surrogate inquires whether he/she may preside over cases in which an attorney, who is the spouse of the Chief Clerk of Surrogate’s Court appears before the judge, either in County Court or in Surrogate’s Court, representing Mental Hygiene Information Services (the agency by whom the spouse is employed), or on behalf of a private client.

         In Opinion 94-49, Vol. XII, involving a situation identical to the one at bar (a Surrogate assigned to sit in Supreme Court inquired as to the propriety of presiding over Supreme Court matters wherein one of the attorneys was the spouse of the Chief Clerk of Surrogate’s Court), the Committee stated that the judge need not disqualify himself/herself from Supreme Court matters provided the Chief Clerk of Surrogate’s Court did not participate in the matters. The same reasoning would apply in the instant matter.

         We now address the issue of whether the judge may preside over cases in Surrogate’s Court wherein the Chief Clerk’s spouse appears.

         Section 100.2(c) of the Rules Governing Judicial Conduct provides:

No judge shall lend the prestige of his or her office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence.

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         Section 100.3(c) of the Rules provides:

A judge shall require staff, court officials and others subject to the judge’s direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.

         To avoid the appearance of impropriety and favoritism resulting from the Chief Clerk’s involvement in any of the cases in which the clerk’s spouse appears, such cases should be referred to another court clerk. The Chief Clerk should not appear in the courtroom while his/her attorney-spouse appears (see, Opinion 90-130, Vol. VI). It is our opinion that as long as the above procedures are followed, the judge would not have to disqualify himself/herself from Surrogates Court matters in which the attorney-spouse of the Chief Clerk of that Court appears.