Opinion 98-25

March 12, 1998

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

Digest:         A judge may preside in cases in which the judge's law clerk's spouse who is an attorney, or other attorneys in the spouse's law firm, appear provided the judge discloses the relationship, obtains the consent of the parties and insulates the law clerk from participation in the case.

Rules:          22 NYCRR 100.3(D)(1); Opinions 88-140(Vol. III); 90-33(Vol. V).

Opinion:

         A judge inquires whether the judge may preside in cases in which the judge's law clerk's spouse, the spouse's partners, or other members of the attorney/spouse's firm, appear.

         This issue was fully explored in Opinion 88-140 (Vol. III), in which the Committee held that a judge need not recuse himself/herself in cases in which the law clerk's spouse, who serves as an Assistant Public Defender appears, or where other members of the Public Defender's Office appear. But in cases where such appearances are made, the judge must disclose the relationship on the record and obtain the parties' consent to preside. If the judge does preside, the law clerk must be insulated from participation in the matter. (See also Opinion 90-33 [law clerk's sister]).

         However, although it cannot be said that as a matter of law, "the judge's impartiality might reasonably be questioned" (22 NYCRR 100.3[D][1]) in all such matters, thus mandating recusal, the Committee believes it might be wiser for the judge to exercise discretion in favor of disqualification in matters involving the law clerk's spouse.