Opinion 10-05

March 2, 2010

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Dear Judge:

            This responds to your inquiry (10-05) asking whether you may hear certain cases involving the County Attorney’s Office in the same county in which your spouse was recently appointed County Attorney.

         A judge must disqualify him/herself in any proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) including where the judge’s spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]). Therefore, the Committee previously has advised that a judge must disqualify him/herself when the judge’s spouse holds a supervisory position in a public law office (see Opinions 07-216; 05-87; 98-29 [Vol. XVI]). Accordingly, you must disqualify yourself from any cases involving the County Attorney’s Office in which your spouse is involved or appears. In addition, you must disqualify yourself when an Assistant County Attorney appears before you as a representative of the County Attorney, because your spouse, as the County Attorney, is involved either directly or indirectly in all cases in which the County Attorney’s office appears (see Opinions 07-216; 98-29 [Vol. XVI]). However, in either case, the disqualification is subject to remittal except when a party is self-represented or if the matter is before the court ex parte (see Opinion 07-216).

         You also note that you disqualify yourself in all cases where an attorney who is an Assistant County Attorney appears before you in his/her capacity as a private practitioner. In the Committee’s view, you need only disclose the relationship between your spouse and the attorney when the latter appears in cases unrelated to the County Attorney’s office and whether to exercise recusal upon a party’s request is solely within your discretion, as your spouse has no involvement or interest in the case.

         You also note that your spouse is continuing his/her association with a private law firm as “special counsel” and that you disqualify yourself in all cases involving the firm. In Opinion 95-35 (Vol. XIII), the Committee advised that a judge should recuse him/herself in cases involving appearances by a law firm, where the judge’s lawyer spouse has a continuing counsel relationship with the law firm and not merely a retainer interest in occasional, separate, discrete cases. Assuming that your spouse’s position as “special counsel” is a continuing relationship with the private law firm, it is the Committee’s view that your decision to disqualify yourself in all cases involving the firm is prudent.

         Finally, you may continue to preside over criminal cases in the Supreme Court in your County, all of which the District Attorney prosecutes notwithstanding that the County Probation Department, which is represented by the County Attorney’s Office, regularly appears in your court to testify and make recommendations. In the Committee’s view, under these particular circumstances, your impartiality as a judge could not reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         For your convenience, I have enclosed a copy of each of the following Opinions: 07-216, 05-87, 98-29 (Vol. XVI) and 95-35 (Vol. XIII).