January 26, 2012
Digest: A judge is not disqualified from presiding in cases involving the county or its agencies or departments, solely because that judge’s court attorney is married to the county treasurer, provided the judge believes he/she can be fair and impartial. Where the treasurer is a party, however, the judge should insulate his/her court attorney and disclose the relationship.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(e); Opinions 11-64; 10-123; 10-05; 09-44; 08-126; 99-93 (Vol. XVIII); 94-34 (Vol. XII); People v Moreno, 70 NY2d 403 (1987).
A judge whose confidential court attorney is married to the county treasurer asks about his/her ethical obligations when cases before the judge involve the county itself, its treasurer’s office, or other county agencies or departments. The judge advises that he/she currently disqualifies him/herself from tax sale cases, tax certiorari proceedings, and other matters involving the county treasurer’s office. The judge notes that the county itself or its other agencies may also appear before him/her in a range of cases and capacities, including as a party in negligence or land dispute cases; as a petitioner in neglect/abuse, PINS, juvenile delinquency, or article 81 mental hygiene cases; or when the county attorney’s office appears.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][a]-[e]; Judiciary Law §14).
The Committee has advised that “where a law clerk’s spouse is an attorney who practices in the judge’s court, mere disclosure is not sufficient when either the related attorney or his/her partners or associates appear” (Opinion 08-126 [emphasis added]).1 Here, however, the law clerk’s spouse is employed in a non-legal capacity.
In Opinion 99-93 (Vol. XVIII), the Committee considered a County Court judge’s obligations “in matters involving the county’s Support Collection Unit or any other departments of the county Department of Social Services [DSS],” when judge’s law clerk’s sister-in-law is employed by the county’s Support Collection Unit. The Committee advised that “the mere fact of the relationship ... does not mean that the proceeding is one ‘which the judge’s impartiality might reasonably be questioned’” (Opinion 99-93 [Vol. XVIII], citing 22 NYCRR 100.3[E]). The Committee advised that the judge must insulate the law clerk and make disclosure to the parties “in matters involving the county Support Collection Unit or any other departments of the county Department of Social Services,” but may thereafter preside, provided that the judge believes he/she can be fair and impartial (Opinion 99-93 [Vol. XVIII]). The Opinion did not in any way suggest that the judge would incur any ethical obligation when the county itself, or any county agencies or departments other than DSS, appeared before the judge (see id.).
Similarly, in Opinion 94-34 (Vol. XII), the Committee advised that a judge could preside over matters involving the county legislature, even though a member of that body was the judge’s law clerk’s spouse, provided that the judge is able to preside impartially. The judge must, however, disclose the relationship and insulate the law clerk from matters involving the county legislature (see id.).
Here, too, the Committee concludes that the judge’s impartiality cannot reasonably be questioned in tax sale or tax certiorari cases or in other matters in which the county treasurer appears, solely because the judge’s law clerk’s spouse is the county treasurer (see e.g. Opinions 99-93 [Vol. XVIII] and 94-34 [Vol. XII]; see also 22 NYCRR 100.3[E]). Accordingly, provided that the judge believes he/she can be fair and impartial, the judge may preside over matters in which the county treasurer’s office appears, although the judge must insulate the law clerk and disclose both the relationship and the insulation (see Opinions 99-93 [Vol. XVIII]; 94-34 [Vol. XII]).2 If a party requests recusal, the judge must exercise his/her discretion in light of the particular facts in determining whether to recuse (see People v Moreno, 70 NY2d 403, 405  [where disqualification is not mandated, the judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court”]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).
Where the county itself or its other agencies or departments appear, but the treasurer’s office is not involved, the judge may, but is not required to, disclose that his/her court attorney is married to the treasurer (cf. Opinion 99-93 [Vol. XVIII] [setting forth a limited obligation to disclose and recuse based on the judge’s clerk’s sister-in-law’s employment with a particular unit of a county agency]). Similarly, the judge need not disqualify, nor insulate the court attorney from other matters involving the county or its agencies or departments, based solely on the court attorney’s marital relationship, when the county treasurer’s office is not involved (see generally People v Moreno, 70 NY2d 403, 405 ).
1 The extent of the disqualification depends on whether the law clerk’s attorney spouse is employed in a private or public law office, and whether the spouse is head of the public law office (see Opinion 08-126; cf. Opinion 10-05 [discussing the ethical effect on a judge when his/her spouse holds a supervisory position at a public law office]).
2 In the case of non-attorney relatives of the judge’s non-legal staff, although insulation is required, the Committee has not required disclosure (see Opinions 10-123; 09-44).