Opinion 15-96

June 11, 2015

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).

Digest:         (1) The Rules Governing Judicial Conduct do not prohibit a judge from receiving, as part of an equitable distribution, a percentage of the future legal fees earned by his/her former spouse upon the settlement or verdict of any cases deemed part of the former spouse's law practice. (2) When the opposing counsel, from one of the cases which may be subject to the ongoing equitable distribution, appears before the judge in an unrelated matter, the judge may preside after making full disclosure.

Rules:          Judiciary Law §§ 14; 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 13-132; 12-96; 11-64; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge is a party in a contested matrimonial action, and the judge’s spouse¹ is an attorney who represents plaintiffs in a certain category of cases. The judge states that the parties are currently negotiating or considering a potential equitable distribution award or settlement. The judge asks whether it is ethically permissible for him/her to receive, as part of the proposed equitable distribution, a percentage of the future legal fees earned by the attorney spouse upon the settlement or verdict of any cases deemed part of the spouse’s law practice. If so, the judge further notes that the spouse’s opposing counsel in those cases may appear before the judge in unrelated matters. Accordingly, the judge asks about his/her ethical obligations when the spouse’s opposing counsel (from a case in which the judge has an equitable distribution interest) appears before the judge on other matters in which the spouse and his/her law firm have no involvement.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not “allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]) and must “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).²

         The Committee has recognized that the Rules Governing Judicial Conduct “do not preclude a judge from exercising the same rights as any other citizen when appearing as a litigant” (Opinion 12-96). The Committee believes the Rules Governing Judicial Conduct do not prohibit a judge from receiving, as part of an equitable distribution, a percentage of the future legal fees earned by his/her former spouse upon the settlement or verdict of any cases deemed part of the former spouse’s law practice. Likewise, it is permissible for the judge or his/her lawyer to negotiate with the judge’s spouse for a settlement of the judge’s matrimonial action that would include an equitable distribution component structured in that manner (see Opinion 12-96 [noting, however, that a judge who seeks to resolve litigation through negotiation “must not use or invoke his/her judicial title/status in the negotiations”]).³

         In the Committee’s view, there is a risk that the judge’s impartiality could reasonably be questioned when the opposing counsel from an ongoing case in which the judge has an equitable distribution interest appears before the judge (see 22 NYCRR 100.3[E][1]). Therefore, when the opposing counsel from one of the ongoing equitable distribution cases appears before the judge, the judge must disclose that the counsel represents the defendant in a different, unrelated case before another judge, in which the inquiring judge has a percentage interest in the plaintiff’s counsel’s eventual legal fees, if any. Once the judge has fully disclosed his/her economic interest in the unrelated case, the judge may continue to preside over the case before the judge, assuming that no other factor requires the judge’s disqualification and the judge concludes he/she can be fair and impartial.

         Where, as here, disclosure is mandated in lieu of outright disqualification, remittal is not available, and the judge must disqualify him/herself if: (a) any party appears without representation, or (b) the judge does not wish to make full disclosure, or (c) the judge is not legally or ethically permitted to fully disclose (see Opinion 13-132).

         If, after disclosure, a party objects to the judge presiding, the judge may exercise his/her discretion in determining whether to disqualify him/herself after considering all relevant factors (see Opinion 13-132; People v Moreno, 70 NY2d 403 [1987]).

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         ¹ All references to the judge’s “spouse” in the present inquiry refer to the same individual who will, after dissolution of the marriage, more accurately be known as the judge’s “former spouse.”

           ² There are two initial objective tests to determine if disqualification is mandatory: Is disqualification required under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14? If not, might the judge's impartiality nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1])? If disqualification is not mandated under either objective test, the judge "is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

         ³ The Committee cannot comment on any legal questions, including the validity of any particular proposed structure for an equitable distribution or settlement of a matrimonial action (see Judiciary Law §212[2][l]).