May 4, 2017
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 new judge, who previously served as law clerk to his/her current supervising judge and attended multiple events at the judge’s home, must disclose the relationship in cases involving the supervising judge’s spouse’s law firm. Thereafter, the judge may preside if he/she can be fair and impartial after considering all relevant factors. However, because disclosure is mandatory, the judge must disqualify him/herself if a party in the case is appearing without counsel.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 14-27; 12-45; 11-125; 11-124; 07-87/07-95; 07-04.
The inquiring judge, who served as a personally appointed law clerk to an administrative or supervising judge1 before assuming the bench less than two years ago, asks if he/she may preside in cases involving his/her supervising judge’s spouse, who is a practicing attorney. During the judge’s prior tenure as a law clerk to the supervising judge, he/she attended the couple’s wedding and other “social, professional and [bar association] functions” hosted by the supervising judge and his/her spouse at their home. The judge considers his/her relationship with the supervising judge’s spouse to be at the acquaintance level (cf. Opinion 11-125) and is confident he/she can be fair and impartial in any matters involving the supervising judge’s spouse or other attorneys in the same private law office.
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]). Therefore, a judge must 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 the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) and in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14).
In Opinion 11-124, three judges within the same judicial district asked about their disclosure and disqualification obligations, if any, should their administrative judge’s spouse appear before them. The Committee advised that “a judge may preside in a proceeding in which his/her administrative judge’s spouse appears as an attorney, in the absence of any other disqualifying factor and assuming the judge can be fair and impartial, even if a party or counsel objects” (Opinion 11-124 [emphasis added]). Of particular note, the inquiry revealed no such “disqualifying factor” and “no direct connection, whether social, financial or otherwise, between the inquiring judges and the attorney who appears before them” (id.). As a result, the “marital relationship of the inquiring judges’ district administrative judge is sufficiently remote from the inquiring judges that it does not, in and of itself, create any reasonable appearance of impropriety for them and thus neither disclosure nor disqualification is required” (id.).
Conversely, “the relationship between a judge and his/her own personal law clerk is one of ‘particular trust and confidence,’ which involves generally ‘the kind of professional interchange that might be found between long-time colleagues in a law firm’” (Opinion 12-45; see also Opinion 07-04). Thus, for one year after the former law clerk’s court employment ends, a judge must disclose the relationship when his/her former law clerk appears as an attorney before the judge (see Opinions 14-27; 12-45; 07-87/07-95). After disclosure, the judge has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case (id.). However, if any party is appearing without counsel, the judge must not preside (id.).
This inquiry intertwines several elements found in prior opinions, thus heightening the possible appearance of impropriety. The connection here is far more than the ordinary relationship between a judge and his/her administrative judge described in Opinion 11-124, due to the recent relationship of “particular trust and confidence” between this judge and his/her supervising judge. Moreover, as a result of the recently concluded law clerk relationship, the inquiring judge also has direct, ongoing acquaintance-level social connections with both the supervising judge and his/her spouse and has attended multiple events at the couple’s home (see generally Opinion 11-125). Finally, while this judge is no longer a law clerk, he/she effectively remains under the supervision of the same judge for whom he/she previously clerked and whose spouse practices in his/her court.
On these facts, the Committee concludes this judge’s impartiality “might reasonably be questioned” when his/her supervising judge’s spouse’s law firm appears before him/her, unless the relationship is affirmatively disclosed (22 NYCRR 100.3[E]). Thus, disclosure is mandated in lieu of outright disqualification when the supervising judge’s spouse’s law firm appears.
Accordingly, provided no party is appearing pro se, the judge must make full disclosure when the supervising judge’s spouse’s law firm appears before him/her.2 After disclosure, the judge should exercise his/her discretion in determining whether or not to recuse after considering all relevant factors. However, he/she has no obligation to disqualify him/herself on request.
If a party appears without counsel, disqualification is required and remittal is not possible.
1 For simplicity, the Committee will refer to the other judge as the “supervising judge.”
2 The Committee invites the judge to seek further guidance concerning his/her disclosure obligations, should any material change in circumstances occur.