April 28, 2011
Digest: A full-time judge may provide informal, uncompensated legal advice and assistance to his/her spouse in the selection of, and consultation with, counsel to represent the spouse in a proposed class action or other proceeding against the spouse's employer.
Rules: 22 NYCRR 100.0(I); 100.3(E)(1); 100.3(F); 100.4(G); Opinion 09-46; Joint Opinion 08-171/08-174; Opinions 07-128; 03-129; 99-114 (Vol. XVIII); 99-47 (Vol. XVII).
A full-time judge asks whether he/she may give uncompensated legal advice to his/her spouse, who is a court employee, regarding the spouse's employment-related claims against the Office of Court Administration. The judge would provide assistance "in the selection of and consultation with counsel to represent the spouse in a proceeding, action or class action."
A full-time judge shall not practice law, but "may, without compensation, give legal advice to a member of the judge's family" (22 NYCRR 100.4[G]; see also 22 NYCRR 100.0[I] [defining "member of the judge's family"]). This Committee has consistently advised that a full-time judge may, without compensation, give informal legal assistance to a family member in a non-lawyer/client context (see Opinions 09-46; 03-129; 99-114 [Vol. XVIII]). Accordingly, the assistance proposed here is likewise permissible.
Once the spouse retains an attorney, the judge must disqualify him/herself from all matters involving the attorney and his/her law firm throughout the course of the representation (see 22 NYCRR 100.3[E]; Opinion 99-47 [Vol. XVII]). In matters where all parties are represented by counsel, such disqualification is subject to remittal pursuant to the procedures set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[F]). However, remittal is not available if any party is unrepresented, or if the judge does not "fully disclose the fact and nature of the representation" (Joint Opinion 08-171/08-174).
Once the judge's spouse's representation is concluded and all legal fees have been paid, the judge should disclose the representation for two years thereafter whenever the attorneys who represented his/her spouse appear before the judge, but disqualification is no longer required as long as the judge believes he/she can be fair and impartial (see Opinion 99-47 [Vol. XVII] [attorney who represented the judge's spouse]; see also Joint Opinion 08-171/08-174 [attorney who represented the judge]; Opinion 07-128 [attorney who represented the judge's child]; 22 NYCRR 100.3[E]).