Digest: A judge should not preside in cases in which members of a law firm which employs the judge's spouse in a paralegal/ clerical position, appear before the judge, but the disqualification is subject to remittal.
 

Rule:  22 NYCRR 100.3(E) and (F);
           Opinions 88-105 (Vol. II); 91-125 (Vol. VIII).
 
 

Opinion:

            A town justice inquires whether recusal is required in matters in which members of a law firm which employs the judge's spouse in a paralegal/clerical position, appear before the judge.

            The Rules Governing Judicial Conduct require a judge to "...disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E). In our opinion, the relationship of judge and spouse and spouse and employer create a reasonable basis for a questioning of impartiality in cases in which the law firm appears. Under such circumstances, the judge should disclose the nature and extent of the relationship to the parties and disqualify him or herself. The parties, however, may execute a remittal of disqualification by agreeing, without participation by the judge, that the judge may preside. If the parties reach such an agreement, it should be incorporated in the record of the proceeding in open court, and the judge may preside, provided that "the judge believes that he or she will be impartial and is willing to participate . . ." 22 NYCRR 100.3(F). See, Opinions 91-125 (Vol. VIII); 88-105 (Vol. II).