July 26, 2016
This responds to your inquiry (16-81) asking if it is ethically permissible to preside in matters involving a particular attorney. You raise two possible conflicts concerning this attorney for our consideration. First, the attorney is associated in the practice of law with the attorney for your municipality. Second, the attorney’s spouse is employed by your municipality as the full-time administrative assistant to a person who participates in setting your salary and the court’s budget. (The Committee understands from your inquiry that the attorney’s spouse’s responsibilities are strictly clerical/secretarial in nature; he/she has no power to vote on the municipality’s budget).
A judge must avoid impropriety and its appearance (see 22 NYCRR 100.2) and always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). The Committee has previously advised there is no per se ethical bar to the partners or associates of the town attorney representing clients before a part-time judge. Similarly, the mere fact that an attorney’s spouse is a secretary or administrative assistant to a certain municipal official is no ground for automatic recusal. As neither the attorney nor his/her spouse has any apparent involvement in setting your salary or the court’s budget, the question of a recusal remains solely within your personal discretion.
Enclosed, for your convenience are Opinions 14-56; 11-02; 03-40; and 92-16 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)