January 19, 1995
Please Note: Opinion 12-154 has abolished the requirement that a judge must disclose and/or recuse whenever a relative of his/her co-judge appears. Please review Opinion 12-154 for more information.
Digest: The appearance of the lawyer-spouse of one of two multi-hat County Court judges does not require the recusal of the other judge unless that judge doubts his or her ability to be impartial and provided that the judge discloses the lawyer's spousal relationship to the other parties.
A newly elected multi-hat County Court judge, who is one of two judges who will preside in the Family and Surrogate's Courts as well as the County Court, inquires whether the judge's spouse and former law partner may continue to practice in those courts when appearing before the other judge.
While the questions more properly should be posed by the judge before whom the spouse would appear, to avoid unnecessary delay the Committee directs the inquiring judge to Opinion 90-111. Although that opinion cites section 100.3(c)(1)(iv)(b) of the Rules of the Chief Administrator which requires disqualification in a proceeding where a judge's impartiality might reasonably be questioned, it concludes that the appearance of the spouse of a fellow judge in a multi-judge court, that is, a court with more than two judges, is not a ground for disqualification nor is the judge affirmatively obligated to disclose the relationship .
There does not appear to be any reason why a different rule as to recusal should be required in the case of a two-judge court, particularly a county-level court and not a local or village court, unless the other judge doubts his or her ability to be impartial. However, because of the possible perception of a particularly close relationship where only two judges serve in the same courts, the judge should disclose to the parties the lawyer's spousal relationship to the judge's colleague, but recusal would not be required even upon the opposing party's application unless the particular circumstances otherwise warrant.