Opinion 20-68

March 19, 2020


Digest:         A town justice may preside in matters involving the public defender’s office where his/her spouse works as an eligibility investigator, provided he/she discloses his/her spouse’s employment.


Rules:          CPL 210.15(2)(c); 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(i)-(iii); 100.3(E)(1)(e); Opinions 19-58; 16-140; 93-28.


         A town justice asks about his/her ethical duties involving the public defender’s office, once his/her non-attorney spouse begins working there as an eligibility investigator. We understand the public defender initially screens defendants for financial eligibility by assigning an eligibility investigator to review their financial information. Thereafter, if the defendant meets specified criteria, the public defender accepts him/her as a client and accompanies him/her to court. The judge then formally appoints the public defender’s office to represent the defendant. The judge’s spouse would be one of several investigators who help determine if defendants throughout the county are eligible for indigent legal services. Although defendants screened by the judge’s spouse will likely appear before the judge, he/she will not know which eligibility investigator screened a particular defendant.

         A judge must always avoid the appearance of impropriety (see 22 NYCRR 100.2) and must always in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (see 22 NYCRR 100.2[B]). A judge is disqualified in any proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge’s spouse is “a party” or “an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][i]-[ii]), is “acting as a lawyer in the proceeding or is likely to be a material witness” (22 NYCRR 100.3[E][1][e]), or has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]).

         “A judge is not automatically disqualified from all matters involving a DA’s office, public defender’s office, or law enforcement agency that employs the judge’s spouse or domestic partner in a strictly clerical capacity” (Opinion 19-58). Indeed, “absent some additional factor requiring disqualification, the judge generally may preside, provided the judge concludes he/she can be impartial and discloses his/her spouse’s position” (id.). Thus, a judge may preside in narcotics cases when his/her spouse is the secretary to the narcotics bureau chief, provided he/she can be impartial (see Opinion 93-28). Also, a judge, whose spouse is the principal clerk to the District Attorney with many administrative responsibilities, is not necessarily disqualified from criminal cases (see Opinion 19-58). Rather, the judge may preside if he/she can be fair and impartial and discloses his/her spouse’s employment.

         Here, the judge’s spouse would likewise work in a behind-the-scenes, non-legal capacity for a public law office, rather than a private law firm. The spouse would be one of several financial eligibility investigators and would not be assigned exclusively to a particular court. The judge will not know if his/her spouse made an eligibility determination with respect to any particular defendant. Nor is the judge necessarily bound by the public defender’s office’s eligibility determination, as he/she has his/her own independent obligations concerning the right to counsel (see generally Opinion 16-140 [“The right to counsel is unquestionably a fundamental right, rooted in common law and constitutional principles and codified by statutes” and thus “a judge’s obligations in assigning counsel for indigent defendants ‘may have constitutional dimensions’”] [citations omitted]; CPL 210.15[2][c]).

         Accordingly, we conclude the judge may preside in cases where the defendant is represented by the public defender while his/her spouse is employed as financial eligibility investigator, provided the judge “(a) can be fair and impartial and (b) discloses his/her spouse’s employment with the public defender. The judge has full discretion to preside after disclosure, even if a party objects” (Opinion 19-58 [internal citation omitted]).