Opinion 99-47

March 11, 1999

Please Note: As stated in Opinion 22-133, "Opinion 99-47 is modified to the extent that it required disqualification for the entire firm, rather than only the specific attorneys involved in representing the judge's spouse."

Digest:         A judge should disqualify him/herself in any proceeding involving a law firm which is currently representing the judge's spouse, subject to remittal. For a two-year period following conclusion of the representation, the judge should disclose the prior representation, but recusal is not required if the judge feels he or she can be fair and impartial.

Rules:          22 NYCRR 100.3(E)(1) and (F);

Opinions 89-29 (Vol. III); 92-31 (Vol. IX);

92-60 (Vol. IX); 93-61 (Vol. XI); 95-160 (Vol. XIV).

Opinion:

         The spouse of a judge has retained a law firm which occasionally appears in the judge's court, to represent the spouse in a will contest. The judge asks about recusal in matters involving the law firm.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct requires a judge to disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). In our view, the current representation of the judge's spouse gives rise to such a possibility should the law firm appear before the judge. It follows, therefore, that the inquiring judge should disclose the relationship and disqualify him/herself in all matters involving the law firm that is representing the spouse. Opinions 89-29 (Vol. III); 92-31 (Vol. IX); 92-60 (Vol. IX); 93-61 (Vol. XI); 95-160 (Vol. XIV). The parties may, however, effect a remittal of disqualification, thus allowing the judge to preside if the judge feels that he/she can be fair and impartial. 22 NYCRR 100.3(F); Opinions 89-29 (Vol. III); 92-31 (Vol. IX); 92-60 (Vol. IX); 93-61 (Vol. XI).

            We further advise that for a two-year period following the conclusion of the representation, the judge should continue to disclose the spouse's relationship with the law firm, but need not disqualify him/herself if the judge feels that he/she can be fair and impartial. Opinion 92-31 (Vol. IX).