March 21, 2012
This responds to your inquiry (12-42) asking about your ethical obligations when cases are before you in which a party is represented by the Office of the Public Defender, where your spouse is employed as the confidential secretary to the Public Defender.
The Committee previously has advised that a judge whose spouse is the confidential secretary to the sheriff may preside in cases involving the sheriff’s department, as long as the judge can be impartial and discloses his/her spouse’s employment relationship (see Opinion 10-23). You should follow the same procedure when the Public Defender’s office appears in your court. If a party objects after you disclose your spouse's employment with the Public Defender's office, whether to exercise recusal is entirely within your discretion.
It is assumed your spouse is bound by office confidentiality and would not discuss any case files with you. Moreover, you are obligated to strictly comply with 22 NYCRR 100.3(B)(6), which prohibits a judge from “initiat[ing], permit[ting], or consider[ing] ex parte communications, or consider[ing] other communications made to the judge outside the presence of parties or their lawyers concerning a pending or impending proceeding.”
Enclosed, for your convenience, are Opinions 10-23 and 93-28 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)