Opinion 03-30

April 15, 2003

Please Note: As modified by Opinion 13-26, the judge need not obtain the consent of the parties: “Rather, provided no party is appearing without counsel, the judge may continue to preside if the judge concludes that he/she can be fair and impartial. However, the judge must disclose the existence of the relationship when the attorney or the attorney’s law firm appears in the judge’s court and must also disclose that the law clerk or secretary will be insulated from all cases involving the attorney or the attorney’s law firm. If a party objects to the judge’s continued involvement in the case, whether to continue to preside is solely within the judge’s discretion.” (Text has been struck through below to indicate this change.)

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:         A judge whose principal court attorney’s spouse is a director of a legal services corporation whose attorneys appear before the judge is not disqualified from presiding in those attorneys’ cases or required to disclose the relationship; but if the court attorney’s spouse was involved in a particular case, the judge must disclose the relationship and obtain the consent of the parties to preside, and the principal court attorney must be insulated from that case.

Rules:          22 NYCRR 100.3(E)(1); 100.3(F) Opinions 90-196 (Vol. VI), 98-25 (Vol. XVI), 88-140 (Vol. III).

Opinion:

         A judge’s principal court attorney’s spouse is considering becoming a director of a legal services corporation whose lawyers appear before the judge. The judge inquires (1) whether the directorship would automatically disqualify those lawyers from appearing before the judge (a question that may be restated as whether the judge is disqualified in cases in which the lawyers appear; (2) if not, whether the judge must disclose the relationship; and (3) whether the principal court attorney must be insulated from any case in which a legal services attorney appears. The judge states that the director would not appear in court or be involved directly in any cases.

         At issue is the application of section 100.3(E)(1) of the Rules Governing Judicial Conduct which provides for judicial disqualification in circumstances where the judge’s impartiality might reasonably be questioned. 22 NYCRR Rule 100.3(E)(1). Applying that standard, this Committee has previously stated that a judge may appoint a law assistant whose spouse is an attorney with a legal services program that frequently appears in the judge’s court, and need not disclose the relationship or recuse himself or herself when attorneys other than the spouse appear before the court. If the law clerk’s spouse appears, the judge may preside over the case if all parties consent, provided that the law clerk does not participate in any way in the case. Opinion 90-196 (Vol. VI).

         Further, in Opinion 88-140 (Vol. III) the Committee held that recusal is not automatically required in cases in which the law clerk’s spouse, who is an assistant public defender, appears or other members of the Public Defender’s Office appear. But in such cases the judge must disclose the relationship on the record and obtain the parties’ consent to preside. See 22 NYCRR 100.3(F). If the judge does preside, the law clerk must be insulated from participation in the matter.

         Similarly, the Committee has held that a judge may preside in cases in which the judge’s law clerk’s spouse, who is a private attorney, or other attorneys in the spouse’s law firm, appear, provided that the judge discloses the relationship, obtains the consent of the parties to preside, and insulates the law clerk from participation in the case. Opinion 98-25 (Vol. XVI). In the latter opinion we went on to say, “However, although it can not be said that as a matter of law, ‘the judge’s impartiality might reasonably be questioned’ in all such matters, thus mandating recusal, the Committee believes it might be wiser for the judge to exercise discretion in favor of disqualification in matters involving the law clerk’s spouse.”

         In light of the above opinions, the Committee concludes that the inquiring judge is not disqualified from presiding in legal services corporation cases or required to disclose to the parties the court attorney’s relationship to a director. But if the director gave advice in, monitored, or signed off on a particular case, the judge must disclose the court attorney’s relationship and obtain the consent of the parties to preside, and the court attorney must be insulated from the case. In such a case, however, the judge might be better served by opting to exercise recusal.