September 11, 1997
Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”
Digest: A Family Court judge in a large metropolitan county need not affirmatively disclose a spousal relationship where the judge's spouse is employed as an attorney for the Legal Aid Society in the same county, but should recuse himself/herself if the spouse has had any involvement with the case.
Rules: 22 NYCRR 100.3(E)(1)(c); 100.3(E)(1)(e); Opinions 97-39, 96-42 (Vol. XIV), 93-116 (Vol. XI), 93-08 (Vol. X); 90-91 (Vol. VI).
A Family Court judge who serves in a large metropolitan county, advises that the judge presides over juvenile delinquency matters and that the judge's spouse, who is an attorney employed by the Legal Aid Society - Juvenile Rights Division in that county, appears in Family Court in juvenile delinquency matters. The judge inquires whether there must be recusal in all juvenile delinquency cases in which the respondent is represented by the Legal Aid Society.
In Opinion 90-91 (Vol. VI) this Committee determined that a judge whose spouse is employed as assistant district attorney or assistant corporation counsel need not affirmatively disclose the relationship if the spouse does not have "an interest that could be substantially affected by the * * * proceeding" (22 NYCRR 100.3(E)(1)(c). Here, the judge need not affirmatively disclose the relationship of the judge's spouse to the Legal Aid Society, but if an objection is made by a party, it is a matter for the judge's conscience whether to disqualify himself/herself. The judge, however, must recuse himself/herself if the spouse has had any involvement in the case, subject to the provisions governing disclosure and remittal. See also, 22 NYCRR 100.3(E)(1)(e). Opinions 97-39, 93-116 (Vol. XI), 93-08 (Vol. X); 90-91 (Vol. VI).