May 4, 2017
Digest: A judge whose non-attorney spouse is employed by a local public authority may preside in matters where a part-time employee of the same public authority, in his/her capacity as a private attorney, appears on behalf of criminal defendants or other private clients. The judge need not disclose that the attorney also works part-time for the same public authority that employs the judge’s spouse.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 16-03; 13-108; 12-163; People v Moreno, 70 NY2d 403 (1987).
A full-time judge’s non-attorney spouse has accepted employment with a local public authority. The authority employs over 200 people, including a few full- and part-time attorneys. One of the part-time attorneys also maintains a private law practice and regularly appears before the inquiring judge on behalf of private clients, including many criminal defendants. The judge asks if he/she must disclose the relationship and/or disqualify him/herself when his/her spouse’s part-time fellow employee appears before the judge as a private attorney on behalf of his/her clients.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself where required by rule or statute (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]). 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]).
The Committee has previously considered whether a judge may preside over matters involving his/her non-attorney spouse’s public sector employer (see e.g. Opinion 12-163), including when the spouse’s fellow employees appear on the employer’s behalf. For example, a judge need not disclose his/her relationship or disqualify him/herself in cases involving the state police, where the judge’s spouse is a statewide security officer (see Opinion 16-03 [noting the position is not “high profile” or in the upper echelons]). Similarly, a judge whose spouse is a supervisor in the county probation department may preside over criminal matters in which the department participates, except that the judge is disqualified, subject to remittal, when probation officers under the direct supervision of the judge’s spouse participate in a matter (see Opinion 13-108).
Here, any possible appearance of impropriety is even more remote because the judge’s spouse’s employer, the public authority, will not appear before him/her. Rather, the spouse’s part-time fellow employee, an attorney, will appear before the judge solely on behalf of private legal clients. As the inquiry reveals no financial, business, or supervisory relationship between the judge’s spouse and his/her fellow employee,1 the judge’s impartiality cannot “reasonably be questioned” in matters where the spouse’s fellow employee appears in his/her independent private law practice (22 NYCRR 100.3[E]).
Accordingly, disclosure of the fact that the judge’s spouse and the attorney appearing before the judge are employed by the same entity is not required as long as the judge can be fair and impartial as determined by the judge in his/her sole discretion (cf. People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside.
1 The mere coincidence of an engineer and a lawyer both working for the same public sector employer does not, without more, create any appearance of a financial or business relationship between them.