May 27, 2015
This responds to your inquiry (15-87) asking whether you may preside in cases involving the District Attorney’s office now that your co-judge’s spouse is employed as an Assistant District Attorney. You indicate your co-judge’s spouse will not be assigned to appear in your court, but you reasonably predict situations where he/she may be required to appear.
The Committee has previously advised that a judge’s impartiality cannot reasonably be questioned solely because an attorney appearing before the judge is closely related to his/her co-judge. Therefore, you are not disqualified from presiding over cases where your co-judge’s spouse appears provided you can be fair and impartial and absent any different, additional factor about your relationship with your co-judge his/her spouse that may require disclosure or disqualification (see Opinion 12-154). Nor, in the absence of any additional factors, are you required to disclose your co-judge’s relationship when his/her spouse appears in your court (see Opinions 12-154; 08-129 and 90-111).
Furthermore, you are not disqualified from presiding when other attorneys from the District Attorney’s Office appear.
Enclosed, for your convenience, are Opinions 12-154; 08-129 and 90-111 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)