Opinion 15-161

September 10, 2015

Digest:         The Rules Governing Judicial Conduct do not prohibit a full-time judge’s spouse from acting as a real estate broker on behalf of a trust that is jointly administered by another judge and an attorney who does not appear before the inquiring judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C); 100.6(A); Opinions 15-62; 13-172; 13-24; 12-20; 11-124; 10-124.

Opinion:

         The inquiring judge says the co-trustees of a testamentary trust wish to employ the judge’s spouse, a realtor, to sell the trust’s realty. The co-trustees are another judge and a lawyer. Although the inquiring judge has administrative duties in the courts, he/she does not supervise the co-trustee judge. The inquiring judge also says the co-trustee attorney has not appeared before the judge for over 10 years and will not in the future. The judge asks if his/her spouse may accept the proposed employment.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must also diligently discharge the judge’s administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration (see 22 NYCRR 100.3[C]).

         However, the Rules Governing Judicial Conduct apply only to judges and “other persons to whom by their terms these rules apply” (22 NYCRR 100.6[A]); they do not, by their terms, apply to a judge’s spouse (see e.g. Opinions 15-62; 12-20; 10-124). Thus, the Committee has advised that a judge, with no financial interest in his/her spouse’s limited liability company, need not prohibit the spouse or his/her company from independently renting a storefront to a political organization (see Opinion 15-62). Similarly, this judge need not prohibit his/her spouse from being a broker in the sale of the trust’s real property under these circumstances.

         Moreover, since this judge has no administrative duties involving the other judge and the lawyer does not appear before this judge, it is unlikely disclosure or disqualification would be required (see generally Opinions 13-24 [discussing a judge’s spouse’s business dealings]; 13-172 [judge’s spouse engaged realtor who is married to an attorney who regularly appears before judge]; 11-124 [judge may preside where his/her administrative judge’s spouse appears as attorney]).