January 25, 2001
Neither recusal nor disclosure are required in proceedings involving the
District Attorney's office merely because the spouse of the judge's court
attorney is associated in private practice with a part-time assistant district
attorney who will, in any event, not be appearing before the judge in any
22 NYCRR 100.3(E)(1).
A newly-elected multi-hat county judge is considering hiring as his/her court attorney, the spouse of an attorney who is associated in private law practice with a part-time assistant district attorney of the county where the judge sits. That assistant district attorney will not be appearing before the judge. Nevertheless, the judge asks whether there is any requirement of disqualification or disclosure with respect to other members of the prosecutor's office who may appear before the judge.
Section 100.3(E)(1) of the Rules Governing Judicial Conduct provides for
disqualification in any "proceeding in which the judge's impartiality might
be questioned . . . ." 22 NYCRR 100.3(E)(1) (emphasis added). In our opinion
the fact that a court attorney's spouse may be associated in private practice
with a prosecutor (who will not be appearing before the judge) does not
give rise to a reasonable belief drawing into question the judge's impartiality
in proceedings where other assistant district attorneys are appearing before
the judge. Neither recusal nor disclosure are required in such situations.