Opinion 05-87

December 8, 2005


Digest:         A judge whose spouse is the attorney-in-charge of the criminal practice of a legal services provider organization should not preside in criminal cases where the defendant is represented by the organization.


Rule:            22 NYCRR 100.2; 100.3(E)(1); 100.3 (E)(1)(c); 100.3 (E)(1)(e); Opinion 98-29 (Vol. XVI).


         The spouse of the inquiring judge was recently appointed attorney-in-charge of the criminal practice of a legal services provider organization. In that capacity the spouse is responsible for, among other things, “the provision of legal assistance in criminal cases in State criminal trial proceedings,” and reports directly to the organization’s attorney-in-chief, who is the attorney of record. Some of the defendants who appear before the inquiring judge are represented by the organization. The judge asks whether the spouse’s position with the provider organization requires recusal in any case where a defendant is represented by the organization.

         In particular, in two cases, the organization’s trial attorneys have moved for the judge’s recusal based upon the familial relationship between the judge and the attorney-in-charge of the organization’s criminal practice. In that regard, we note initially that the organization has detailed guidelines for its attorneys with respect to “appearances before judges who have close relationships with members of the [organization’s] staff.” Among those obligations is the duty to “ask the judge (i) to advise all parties to the proceedings of the familial relationship between the judge and the [organization’s] staff member and (ii) to offer all parties to the proceeding the opportunity to recuse the judge from adjudicating the matter, without prejudice to the prompt and fair adjudication of the case.”

         In assessing the propriety of the judge continuing to preside, the Committee is guided by section 100.3(E)(1) of the Rules Governing Judicial Conduct which provides that “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” (22 NYCRR 100.3([E][1]) and its own opinions applying that provision. Specifically, recusal is required in situations where the judge’s spouse has an interest that could be substantially affected by the proceeding (22 NYCRR 100.3[E](1)[c]) and where the judge’s spouse or a person within the fourth degree of relationship to either of them, or the spouse of such a person “is acting as a lawyer in the proceeding.” 22 NYCRR 100.3(E)(1)(e). With respect to the latter provision, the judge notes that his/her spouse is not the attorney of record in the matters before the court.

         The Committee does not regard the fact that the spouse is not the attorney of record as being at all dispositive of the matter in issue. It is implicitly acknowledged that were the spouse the attorney-in-chief for the organization as a whole, recusal would be required. Yet, in this instance, the spouse is in a position just below the attorney-in-chief, to whom he/she reports, and it is the spouse who bears the responsibility of overseeing all criminal practice operations including the very operations involved herein: State criminal trial proceedings. Thus the judge’s spouse is more closely connected to the matters before the judge than the attorney-in-chief.

         Moreover, regardless of whether the spouse is to be deemed “acting as a lawyer in the proceeding,” it is noteworthy that the inquirer acknowledges that a “criminal defense practice is client-driven: the individual attorney must be governed by the individual client’s best interests . . .” Obviously, this does not mean that merely because a client deems it in his or her best interest to remove a case from a particular judge, the attorneys are obligated to seek such removal. But, here, the basis for removal is that the relationship is such as to give rise to the claim that the judge’s impartiality might reasonably be questioned. We are unable to state that such a claim is unreasonable, especially in light of the organization’s own guidelines pursuant to which the trial attorneys are obligated to ask the judge to offer recusal. Furthermore - although not the major concern - to accept the notion that the judge may preside would be to reject any concern that the agency’s lawyers who appear before this judge would never hesitate to be as assertive and passionate as may be deemed necessary in certain circumstances when confronting the judge in an effort to persuade him/her to accept a particular point in a situation where the judge appears unreceptive.

         Furthermore, - and decisively - the Committee has recognized that a hands-on, overt connection to a specific case need not be present in order to warrant recusal. In Opinion 98-29 (Vol. XVI), the Committee concluded that where a judge’s spouse served as Deputy Chief of the Corporation Counsel’s tort division for a particular county, the judge should exercise recusal in all tort cases brought against the municipality which originate in that county. As stated by the Committee:


Nor is it possible to characterize the judge’s spouse simply as an assistant in a large public law office. In the case at hand, it appears that the judge’s spouse occupies an office which is sufficiently elevated within the Corporation Counsel’s hierarchy as to warrant the inference of direct or indirect involvement in a substantial number, if not all, tort cases against the City which emanate from the county. The Committee therefore believes that the judge should disqualify himself or herself in all such cases.

         In short, the Committee does not adopt the view, that the higher the relative is in the organization’s hierarchy, the less ground there is for disqualification. Regardless of the merits of such a view under different circumstances (e.g. were the spouse the attorney-in-charge of the organization’s civil practice), that is not what is before us. On the contrary, given the status and all-encompassing responsibilities of the spouse for the “provision of legal assistance in criminal cases in State criminal trial proceedings” we are compelled to conclude that the spouse must be deemed to be “involved” in the criminal proceedings over which the judge presides. Accordingly, we advise that the judge should exercise recusal and thus avoid any appearance of impropriety. 22 NYCRR 100.2.