Opinion 15-08


March 19, 2015

 

Digest:         During the pendency of a judge’s matrimonial action, and while any associated financial obligations continue between the judge and his/her spouse or former spouse, and for two years thereafter:

(1)(a) The judge is disqualified, subject to remittal, in cases involving his/her ex-spouse’s law partners and associates. (b) The judge may nonetheless preside in such cases if the ex-spouse’s law firm demonstrates to the judge’s satisfaction that it has taken steps to ensure that the judge’s ex-spouse is completely insulated from the firm’s cases before the judge, so that the judge’s ex-spouse will have no participation in any such cases and will not share in the legal fees.

(2) The judge is disqualified, subject to remittal, from cases involving attorneys who are or were personally involved in the judge’s matrimonial proceeding.

(3) The judge is disqualified, subject to remittal, from cases involving experts who were retained or appointed in the judge’s matrimonial case. After this period has elapsed, the judge must continue to fully disclose the former attorney/client relationship with respect to attorneys who were personally involved in representing the judge or the judge’s ex-spouse in the matrimonial action, but otherwise has no further obligation provided the judge can be fair and impartial.

 

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 14-51; 14-27; 13-64; 12-36; 11-64; 11-43; 10-99; 10-56; 09-138; 08-171/08-174; 07-105/07-119; 07-99; People v Moreno, 70 NY2d 403 (1987).


Opinion:


         The inquiring judge is a party in a contested matrimonial action, and the judge’s spouse1 is a private attorney. The judge asks about his/her ethical obligations (1) when the spouse’s law firm colleagues appear; (2) when the judge’s attorney or the spouse’s attorney appears; and (3) when an expert who evaluated a marital asset appears. The judge also asks whether it makes a difference if the expert was party-retained or court-appointed.


         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote 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” (22 NYCRR 100.2[B]) and must “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).2


Spouse’s Law Firm Colleagues


         A judge may not preside if he/she knows that his/her spouse is acting as a lawyer in the matter (see 22 NYCRR 100.3[E][1][e]).3 The Committee has further advised that a judge, whose spouse is a partner in a private law firm that frequently appears in the judge’s court, must disqualify him/herself from presiding when a partner or associate of the spouse’s law firm appears, except in very limited instances (see Opinion 11-43).


         In two prior opinions, the Committee has considered a judge’s obligations when his/her former spouse is a prosecutor whose office appears in the judge’s court. The Committee advised that a judge is disqualified, subject to remittal, when his/her former spouse appears before the judge as a prosecutor (see Opinion 07-99). This obligation continues while any child support obligations continue between the judge and his/her former spouse (see Opinion 12-36). After the financial duties between the former spouses are discharged, the judge must continue to disclose the former marital relationship when his/her ex-spouse appears before him/her as a prosecutor, but retains the discretion to preside or recuse unless a party is self-represented in which case recusal is mandatory.


         The Committee has also advised that, while child support obligations continue between a judge and a prosecutor who is the judge’s former spouse, the judge is disqualified, subject to remittal, when other prosecutors subject to the judge’s ex-spouse’s supervision appear before the judge (see Opinion 12-36). After the financial obligations between the ex-spouses are discharged, the judge may preside and need not make any disclosure when other prosecutors subject to the ex-spouse’s supervision appear before the judge (see id.).


         However, it appears that the Committee has not previously considered a judge’s obligations with respect to a former spouse’s partners and associates at a private law firm.4 Because of the financial relationship among partners and associates in a private law firm, the Committee believes this judge is disqualified, subject to remittal, when his/her ex-spouse’s partners and associates appear before the judge while the matrimonial case is pending and while any associated financial obligations between the parties, such as equitable distribution, spousal or child support obligations, remain outstanding (cf. Opinion 11-43). To avoid any possible appearance of impropriety, this disqualification obligation continues for two years after the matrimonial case concludes as well as any associated financial obligations.


         During this disqualification period, however, the Committee believes it is possible to erect an effective ethics screen with respect to the ex-spouse’s colleagues. If the law firm demonstrates to the judge’s satisfaction it has taken effective steps to ensure the judge’s ex-spouse is completely insulated from all cases where the law firm appears before the judge, so that the ex-spouse will have no participation in any such cases, will share no resulting legal fees, and is otherwise completely insulated from all such firm matters, the judge may preside over cases in which other firm attorneys appear without the need for disclosure, disqualification, or remittal (cf. Opinion 14-27).


Counsel in Matrimonial Proceeding


         In Joint Opinion 08-171/08-174, the Committee advised that a judge who is being represented by counsel in a personal legal matter must disqualify him/herself when any attorney involved in the judge’s representation appears before the judge, both during the representation and for two years after the matter is concluded. During this period, disqualification “is subject to remittal only if the judge believes...he/she can be impartial and only if [he/she] is willing to disclose fully that the attorney is representing the judge in a personal legal matter and the nature of the representation” (Joint Opinion 08-171/08-174; 22 NYCRR 100.3[F]).5


         As for other attorneys in the same firm, who are not involved in the judge’s representation, the Committee advised that the judge’s disqualification continues only while the representation is ongoing (Joint Opinion 08-171/08-174). Once the representation is fully concluded, the Committee advised that disclosure is required for two years when the judge’s personal attorney's partners and associates who had no involvement in the judge's representation appear (id.). However, if a party objects to the judge's continued participation in the case following disclosure, “whether to exercise recusal is solely within the judge's discretion” (id.). After that two-year period, the judge has no further obligation with respect to his/her former attorney’s law firm colleagues (id.).


         The Committee applied the same standards to a lawyer who represented a judge’s ex-spouse against the judge in a family court case and to that lawyer’s law firm partners and associates not personally involved in the representation (see Opinion 10-99).


         The inquiring judge should therefore follow the same principles. While the matrimonial action is pending and for two years after it is fully concluded (including all financial obligations between the spouses), the judge is disqualified, subject to remittal, when any attorney who is or was personally involved in representing the judge (or the judge’s spouse) appears before the judge (see Joint Opinion 08-171/08-174; Opinion 10-99). Thereafter, if the judge believes he/she can be fair and impartial and is willing to preside in matters involving those attorneys, the judge must fully disclose that the attorney represented the judge (or the judge’s ex-spouse); but if a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely in the judge’s discretion (see id.). Because disclosure is required in lieu of outright disqualification, the judge cannot preside if any party is without counsel (see e.g. Opinion 14-51).6


         When the partners and associates of the judge’s attorney (or the judge’s spouse’s attorney), who are not personally involved in representing the judge (or the judge’s spouse), appear before the judge, the judge’s obligations are somewhat lessened. During the pendency of the matrimonial action, the judge is still disqualified, subject to remittal, when such attorneys appear before him/her (see Opinions 10-99; 08-171/08-174). But for the first two years after the matter is fully concluded (including all financial obligations between the former spouses), only disclosure is required when such attorneys appear before the judge. Thus, the judge may preside during that two-year period provided that (a) the judge believes he/she can be fair and impartial, (b) all parties are represented by counsel, and (c) the judge fully discloses that the law firm represented the judge (or the judge’s ex-spouse) in the matrimonial action (see Opinions 10-99; 08-171/08-174). If any party objects to the judge’s continued participation during this two-year period, whether to exercise recusal is solely within the judge’s discretion (see id.). Because disclosure is required in lieu of outright disqualification during this two-year period, the judge cannot preside if any party appears without counsel (see e.g. Opinion 14-51). After the two-year period terminates, the judge has no further duty to disclose when partners or associates of the attorneys who represented the judge (or the judge’s ex-spouse) appear before the judge. Thus, the judge may, but is not required to, disclose that the firm represented the judge (or the judge’s ex-spouse), and whether to exercise recusal is solely within the judge’s discretion (see Opinions 10-99; 08-171/08-174).


Experts Retained or Appointed in Matrimonial Proceeding


         As for the valuation and other experts who are or were involved in the matrimonial action, the Committee believes a similar standard should apply. Therefore, the judge is disqualified, subject to remittal, during the pendency of the matrimonial action and for two years after the case is fully concluded, when the expert appears before the judge in other matters. On these facts the Committee sees no reason to distinguish between retained and court-appointed expert.


Remittal of Disqualification

            

         Disqualification on each of the three grounds discussed in this opinion is subject to remittal, provided (a) no party is appearing without counsel and (b) the judge is willing and able to make full disclosure of the basis for disqualification on the record (see Opinion 13-64; 22 NYCRR 100.3[F]). Where permitted, remittal is a three-step process: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree the judge should not be disqualified. Third, the judge must independently conclude that he/she (a) can be impartial and (b) is willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding (see Opinion 09-138; 22 NYCRR 100.3[F]).


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         1 It appears that the inquiring judge’s marriage is not yet dissolved as of the date of the inquiry.


         2 There are two initial objective tests to determine if disqualification is mandatory: Is disqualification required under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14? If not, might the judge’s impartiality nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1])? If disqualification is not mandated under either objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). 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).


         3 This is not one of the scenarios in which the rules expressly forbid remittal of disqualification (see 22 NYCRR 100.3[F]).


         4 The Committee has previously recognized certain significant distinctions between private and public employment for the purposes of the Rules Governing Judicial Conduct (see e.g. Joint Opinion 07-105/07-119 [distinguishing between prior employment with a private law firm and prior employment with a public law office]).


         5 After the two-year period, if the judge is willing to preside, the judge must fully disclose the fact and nature of the former representation, but if a party objects to the judge's continued participation in the case following disclosure, “whether to exercise recusal is solely within the judge's discretion” (Joint Opinion 08-171/08-174).


         6 The duration of a judge’s obligation to continue such disclosure more than two years after the matter was concluded depends upon such factors as (1) the nature of the instant proceeding; (2) the nature of the prior representation; (3) the frequency and duration of the representation; (4) the amount of work the attorney performed for the judge (or the judge’s ex-spouse) and the fee charged (if known); (5) whether the representation was routine or technical; and (6) whether there are any special circumstances creating a likely appearance of impropriety (see Opinion 10-56).