Opinion 12-75


April 26, 2012


Digest:         Provided that the judge can remain fair and impartial, and absent any other factor requiring disqualification, a trial court judge may preside in a matter that involves legal issues similar to those the judge’s attorney spouse is litigating before other judges in unrelated matters.


Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(d)(iii); Opinions 11-103; 10-87; 00-119 (Vol. XIX); 99-96 (Vol. XVIII); People v Moreno, 70 NY2d 403 (1987).


         The inquiring judge states that an attorney whose motion the judge recently denied has now requested the judge’s disqualification on the ground that the judge’s spouse, an attorney, is handling cases which “may” involve similar legal issues.1 Although the inquiring judge presides in a trial court of general jurisdiction, the attorney who requests the judge’s disqualification argues that any determination by the judge would constitute “persuasive authority” in other actions, including those involving the judge’s spouse. The judge notes, correctly, that his/her determinations are not binding on other trial court judges, who may rule differently on the same or different sets of facts. The judge asks whether he/she is disqualified from presiding in matters that involve legal issues similar to those involved in the judge’s spouse’s current caseload.

         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]). In particular, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law§14). For example, a judge is disqualified if he/she knows that the judge’s spouse has an economic or other interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][d][iii]). Conversely, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The Committee has previously advised that a judge need not disqualify him/herself from hearing all town ordinance cases on the ground that the judge’s spouse is an attorney who “practices in a related field” and “may have current and former clients who appear before the judge” (Opinion 99-96 [Vol. XVIII]). A judge also need not recuse at the request of an attorney “whose adversary in an unrelated ‘very litigious case’ is the judge’s attorney spouse,” unless the judge cannot remain fair and impartial or has a personal bias against the attorney (see Opinion 11-103). Although the attorney requesting the inquiring judge’s disqualification has argued that the judge’s spouse has “an economic and a professional interest” in the subject matter of the proceeding currently before the judge within the meaning of Sections 100.3(E)(1)(c) and 100.3(E)(1)(d)(iii), the Committee concludes that these Sections are inapposite.

         A trial court opinion, no matter how well-reasoned and convincing, remains only “persuasive authority” for other trial court judges presiding in unrelated proceedings to consider. It is possible that other trial court judges may, from time to time, choose to review the inquiring judge’s opinions and consider whether they agree with the inquiring judge’s analysis on certain legal issues. But even when such other judges choose to apply a similar legal analysis to the facts before them, they are exercising their own independent judicial judgment in applying the law to the facts before them. Thus, the Committee concludes that the inquiring judge’s legal determinations do not “substantially affect” the outcome of unrelated proceedings, pending before other judges, in which the inquiring judge’s spouse appears.

         Thus, under the circumstances described, the Committee concludes there is no appearance of impropriety merely because the judge is deciding legal issues similar to those that the judge’s spouse is litigating in unrelated matters before other judges. Absent other disqualifying factors, therefore, the judge may continue to preside unless the judge believes he/she cannot be fair and impartial, a determination solely within the judge’s discretion after searching his/her personal conscience (see People v Moreno, 70 NY2d 403 [1987]; Opinions 11-103; 10-87; 00-119 [Vol. XIX]).


              1The judge states that he/she was not aware at the time of deciding the motion that his/her spouse was handling any specific matters involving similar legal issues but also points out that he/she routinely decides legal issues which “may” be relevant in cases handled by his/her spouse.