September 4, 2014
Digest: An Appellate Division judge need not disclose that his/her spouse serves on the Committee on Character and Fitness in the judicial department in which the judge presides. However, the judge may not participate on any panel of judges assigned to consider an individual application for admission if the judge’s spouse was involved in reviewing the application.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(e); 602.1(d),(e); 690.8; 690.9; 805.1(d),(e); 1022.34 (d),(e); Opinions 14-64; 09-111(A); 99-146 (Vol. XVIII).
A judge who presides in the Supreme Court, Appellate Division, states that his/her spouse serves on the Committee on Character and Fitness (Character Committee) for the judicial department in which the judge presides. The judge explains that the Character Committee consists of practicing attorneys, appointed by the Appellate Division, who serve as unsalaried volunteers. Toward the end of the bar admission process, one or more members of the Character Committee personally interview each candidate for admission to the bar (see 22 NYCRR 602.1[d]; 690.8; 805.1[d]; 1022.34[d]). The judge notes that most candidates who reach this phase are subsequently admitted to the bar without individualized review or involvement by the Appellate Division judges.1 However, the judge explains that in cases where there are questions concerning an applicant’s fitness for admission, the Character Committee makes a recommendation to the Appellate Division, and “a panel of judges is assigned to render a decision on the admission of that individual.” The inquiring judge states he/she “would not be assigned to any panel in which [his/her spouse] has been involved” and would have “no personal oversight” over such matters.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]). For example, a judge is disqualified, subject to remittal, in instances where the judge knows the judge’s spouse is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][e]). However, the Committee has previously recognized that “the procedures with respect to disclosure, insulation and disqualification” are different for appellate court judges than for trial court judges (Opinions 14-64; 09-111[A]).
The present inquiry appears to raise an issue of first impression for the Committee, as it involves the judge’s spouse’s investigative functions as a court-appointed volunteer in the attorney admission process. That is, the judge’s spouse undoubtedly relies on his/her professional judgment and expertise as an attorney in conducting interviews on behalf of the Character Committee, but presumably reaches factual conclusions about the fitness of each applicant to serve as an attorney. Although the judge’s spouse may not be “acting as a lawyer” or serving as a “material witness” in a traditional sense when he/she raises questions about an applicant’s fitness as a lawyer, the Committee nonetheless believes the judge’s spouse’s involvement in a recommendation to deny a specific applicant’s request to be admitted to the bar raises similar concerns (see 22 NYCRR 100.3[E][e]).
In Opinion 99-146 (Vol. XVIII), the Committee advised that an appellate judge may generally preside over matters in which a law firm that employs the judge’s spouse “on an occasional, part time, per diem basis” appears, and need not disclose the connection. However, if the judge’s spouse was involved with a specific case, the judge is disqualified from presiding over that case (see Opinion 99-146 [Vol. XVIII]). The Committee suggested a possible “bright line” principle that, “where the judge’s spouse is employed on a continuing, full-time basis in a position where the spouse would likely be involved, directly or indirectly, in a substantial number of cases” brought by a particular law office, “the judge would be disqualified from participating in any cases in which that law [office] is involved, unless remittal is obtained” after full disclosure (see Opinion 99-146 [Vol. XVIII]). By contrast, of course, the circumstances of the judge’s spouse’s “occasional, part time, per diem” employment with a law firm in Opinion 99-146 (Vol. XVIII) did not warrant an assumption the spouse would be involved with, or have a substantial interest in, a large number of appeals in which that law firm participated. Therefore, the appellate judge could preside over the law firm’s appeals without disclosure of the spousal relationship, provided the judge's spouse had no involvement whatever in the particular case.
This “bright line” principle seems appropriate under the circumstances here, where most matters involving the Character Committee are uncontested and uncontroversial, and the judge’s spouse, as one of multiple court-appointed attorney volunteers serving part-time on the Character Committee, is unlikely to be personally involved with a substantial number of the applications that come before the Appellate Division for individualized consideration and decision. Indeed, the inquiring judge’s spouse likely has even less of an economic or other interest in the work of his/her fellow volunteers on the Character Committee than the “occasional, part-time, per diem” employee of a law firm has in the work of the full-time partners and associates of the firm (Opinion 99-146 [Vol. XVIII]).
The Committee believes the inquiring judge should not participate in deciding any application for attorney admission in which the judge’s spouse was involved, as this could create an appearance of impropriety (see 22 NYCRR 100.3[E][e]; Opinion 99-146 [Vol. XVIII]). Provided the inquiring judge abides by this restriction, as he/she has proposed to do, the Committee believes the judge’s impartiality cannot reasonably be questioned in other attorney admission matters, based solely on his/her spouse’s service on the Character Committee. Accordingly, the judge need not disclose his/her spouse’s appointment to or service on the Character Committee.
1 The rules provide that, on recommendation of approval, the Character Committee “shall certify” to the Appellate Division that the applicant possesses the requisite character and fitness (see 22 NYCRR 602.1[e]; 690.9; 805.1[e]; 1022.34[e]).