Opinion: 99-96

June 18, 1999

Please Note: This opinion has been overruled in part by Opinion 21-14 concerning a judge’s obligations when current or former clients of the judge’s spouse’s law firm appear: “[W]here the judge’s spouse’s law firm has no involvement whatsoever in the case before the judge and will not share in the legal fees, the judge is not disqualified merely because the judge is aware that one of the litigants is also a current or former client of the judge’s spouse’s law firm in other, unrelated matters.”  See Opinion 21-14.

Digest:         A judge need not disqualify him/herself from hearing all town ordinance cases on the ground that the judge's spouse is an attorney who practices in a related field and may have current and former clients who appear before the judge.

Rule:            22 NYCRR 100.3(E)and (F); Opinions 94-52 (Vol. XII); 90-91 (Vol. VI).

Opinion:

         A judge inquires whether there should be recusal in all proceedings involving town ordinances in view of the fact that the judge's spouse, an attorney, practices extensively in tax certiorari cases, a related field. As explained by the judge, many commercial property owners litigate matters regarding town ordinances and also file tax certiorari proceedings in a different forum. The judge expresses concern that many of the spouse's former and current tax certiorari clients, who are unknown to the judge, may appear before the judge either pro se or with other counsel in matters concerning town ordinances. Presently, whenever the judge recognizes that a litigant was or is currently a client of the spouse's law firm, the judge has initiated a policy of disclosing the relationship and entertaining a recusal application.

            The Committee does not believe that the judge must completely withdraw from town ordinance matters. But, in order to avoid presiding in matters in which the judge's impartiality might reasonably be questioned, and thus to avoid violating section 100.3(E)(1) of the Rules Governing Judicial Conduct, the judge should exercise recusal in all matters involving current clients of the spouse or the spouse's firm. Such disqualification is subject to remittal under section 100.3(F) of the Rules.

            In situations involving former clients of the spouse or the spouse's law firm, the judge should continue to disclose the relationship, entertain recusal motions and recuse whenever appropriate. Recusal in those instances would also be subject to remittal. See Opinions 94-52 (Vol. XII); 90-91 (Vol. VI).