Opinion 03-83

September 4, 2003

Digest:         Under the circumstances presented, a judge should disqualify him/herself (1) in those cases in which attorneys selected by the judge’s spouse represent the spouse’s employer in matters pending, before the judge and, if such cases are pending in unrelated cases in which the attorney is appearing, and, (2) where the attorney -principals of the entity which employs the spouse appear before the judge. Such disqualification is subject to remittal.

Rule:            22 NYCRR 100.3(E)(1)(c) and (d). Opinions 88-105 (Vol. II); 90-151 (Vol. VI); 91-125 (Vol. VIII); 99-87 (Vol. XVIII).

Opinion:

         The inquiring judge seeks the advice of the Committee as to the ethics of several matters related to the judge’s spouse’s employment. The judge’s spouse is a salaried employee of a company and in that position has had occasion to hire attorneys. In each instance, the retention of the attorney is approved by a principal of the employer, but the judge’s spouse is responsible for the initial choice. Further, the spouse is usually involved in the conduct of the litigation and may appear as the representative of the party, or as a witness, or by way of affidavit.

         First, with regard to those attorneys retained by the spouse’s employer who have matters pending before the judge, the judge inquires whether there is an obligation to disclose the relationship or to recuse when the attorney appears before the judge on a different, unrelated matter.

         Second, with regard to those attorneys whose matters involving the spouse’s employer have been concluded and are no longer pending, is there an obligation to disclose the relationship? If an obligation exists, is there anything required beyond disclosure and is there a time limit for the making of such disclosures?

         Finally, insofar as principals of the spouse’s employer are attorneys, what are the disclosure and recusal obligations should any of those attorneys or their firms appear before the judge?

         The Rules Governing Judicial Conduct require a judge to “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,” including instances where the judge’s spouse “has an economic interest

in the subject matter in controversy or in a party to the proceeding or has any other interest that could be substantially affected by the proceeding” or where the “judge’s spouse has an interest that could be substantially affected by the proceeding; or is likely to be a material witness in the proceeding.” 22 NYCRR 100.3(E)(1)(c) and (d).

         Where an attorney is representing the judge’s spouse’s employer and is also appearing before the judge on an unrelated matter, the relationship of judge and spouse and spouse and employer may create a reasonable basis for questioning impartiality. Under these circumstances, the Committee concludes that the judge should disclose the nature and extent of the relationship to the parties and disqualify him or herself. Opinions 99-87 (Vol. XVIII), 90-151 (Vol. VI). After such disclosure, there may be a remittal of disqualification in accordance with the procedures set forth in section 100.3(F) of the Rules and the judge may then preside if he/she believes that impartiality can be maintained. If the parties reach such an agreement, it should be incorporated in the record of the proceeding in open court. Opinion 99-87 (Vol. XVIII). The Committee concludes that the same disclosure is not required where the matters previously handled by that attorney for the spouse’s employer are no longer pending.

         With respect to the appearance of those principals of the entity that employs the spouse, the same disclosure and offer to recuse subject to remittal are required. See, Opinions 91-125 (Vol. VIII); 88-105 (Vol. II).)