Joint Opinion 88-101; 88-102
October 27, 1988
This Joint Opinion was modified by Opinion 90-91 to the extent that it applies to large public law offices.
Topic: (1) Spouse of Supreme Court justice is an assistant corporation counsel; justice presides over cases in which either the city itself or city agencies are defendants; (2) spouse of Supreme Court justice is an assistant district attorney in the county where the justice presides over criminal cases.
Digest: A Supreme Court justice, whose spouse is an assistant corporation counsel, and a Supreme Court justice whose spouse is an assistant district attorney, need not recuse themselves from any case in which the corporation counsel or district attorney, as the case may be, appears, but must disclose the employment of the spouse to the parties, and if all parties and lawyers who have appeared agree in writing or on the record that the disclosed spousal relationship is immaterial, the justice may continue participating in the action.
Rules: 22 NYCRR §§100.3(c)(1)(iv)(b) ; 100.3(d) .
(1) A Supreme Court justice is presiding in a part of the Court in New York City in which the corporation counsel’s office appears on a regular basis representing various city interests in personal injury actions. The justice’s spouse is employed by the corporation counsel, although the spouse is assigned to a separate part of that office which does not handle the personal injury actions normally assigned to the justice.
(2) Another Supreme Court justice presides over a criminal part in a large urban county where the justice’s spouse is an assistant district attorney.
Both justices request advice as to the need for disqualification when cases before them are handled by assistant corporation counsels or assistant district attorneys other than their spouses. Both agree that they can never preside over a case where the spouse is an appearing attorney.
Section 100.3(c) of the Rules of the Chief Administrator states:
A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:
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(iv) the judge or the judge’s spouse, or a person within the sixth degree of relationship to either of them, or the spouse of such a person:
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(b) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.
It also states that a judge shall disqualify himself or herself in a proceeding where:
(v) the judge or the judge’s spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding.
Although a large number of attorneys are employed by the corporation counsel and by the district attorney, an assistant corporation counsel or assistant district attorney who is the spouse of the justice may be seen to have an interest that could be substantially affected by the outcome of the proceeding over which the justice presides, or might appear to be acting indirectly as a lawyer in the proceeding, even though in fact, he or she is not so acting.
However, section 100.3(d) states:
A judge disqualified by the terms of subparagraph (c)(1)(iii) or (iv) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If, based on such disclosure, the parties, by their lawyers, independently of the judge’s participation, all agree that the judge’s relationship is immaterial or that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.
The same rule should apply in this special situation in which the judge’s spouse does not directly act as a lawyer in the proceeding. If the judge is satisfied that he or she can impartially preside over cases handled by other assistant corporation counsels or other assistant district attorneys, as the case may be, then there is no requirement for disqualification. However, the judge must fully disclose on the record the relationship of his spouse with the office, and if requested by either party to disqualify himself or herself, should do so.
The New York State Commission on Judicial Conduct, in the Matter of Robertiello, found that it was improper for a judge to preside over a matter in which his wife’s employer was a defendant. The Commission did not discuss the issue of whether the parties could agree that, pursuant to section 100.3(d) , the judge need not disqualify himself.
This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.