Opinion 25-151

December 18, 2025

Digest: On these facts, a judge whose spouse works for the employment practice of a local legal services organization must disqualify in criminal matters where a defendant is represented by that organization.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c); 100.3(E)(1)(e); 100.3(F); Opinions 25-167; 24-191; 22-23; 21-22(A); 97-82.

Opinion:

          The inquiring judge presides exclusively in criminal matters, but does “not have a permanently assigned part with a docket of cases that are permanently assigned” to him/her.  Instead, the judge presides in calendar parts “on a rotating basis” and handles whichever cases are currently in a given part while he/she is assigned there.  The judge’s spouse has been hired as a staff attorney within the employment practice of a legal services organization that represents many defendants in the judge’s court.  The employment attorneys primarily “represent[] clients in employment-related civil matters” and do not make appearances in criminal cases.  However, a “small percentage” of their work involves advising criminal defense clients about the potential employment consequences of a plea offer.  This process is initiated by a request from the criminal defense lawyer to their employment practice colleagues.  Thereafter, as explained by the judge:

          “The employment attorney may communicate [the requested] information to the client’s criminal defense attorney, or directly to the client, or to the assigned prosecutor.  Either way, the employment attorney’s role is limited to providing non-criminal information about the potential civil consequences of the plea.  The employment attorney does not perform any substantive legal work related to the client’s criminal case and does not advise the client about whether he/she should take the plea offer.  These matters remain the province of the criminal defense attorney exclusively.”

          Finally, from a statistical perspective, the judge concludes that employment consequences are infrequently relevant to criminal cases in his/her court.  The judge further notes that only a miniscule percentage of the organization’s criminal cases involve the employment practice, and the judge’s spouse “would be involved in only a tiny fraction of that already small number of cases.”  The judge emphasizes that he/she “would have no reason to know” whether or not his/her spouse “had provided collateral-consequences information in any particular case” during any particular calendar appearance.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge is disqualified when his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge knows that his/her spouse is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]) or has an economic interest or “any other interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]).

          We have said that recusal is required if a judge’s attorney spouse has any involvement whatsoever in the case before the judge, even indirectly due to a supervisory role (see e.g. Opinions 25-167; 24-191; 22-23; 97-82).

          Still, we do not ordinarily require a judge to disqualify in all matters involving a legal services provider, merely because the judge’s spouse or first-degree relative is a staff attorney there.  The usual rule is that “neither disclosure nor disqualification is mandated in matters involving other attorneys from the same not-for-profit legal services provider that employs the judge’s first-degree relative as an entry-level staff attorney, where the judge is satisfied his/her relative has had, and is likely to have, absolutely no involvement with the case.  Thus, where the judge’s relative is employed in a division or unit that has absolutely no involvement in the kinds of matters that come before the judge’s court, the judge may preside in matters involving other attorneys from other units of the same legal services provider” (Opinion 22-23 [citations omitted]).

          Due to the unusual intersection of three interrelated factors, however, we conclude the inquiring judge must disqualify whenever attorneys appear from the criminal defense practice of the legal services organization that employs the judge’s spouse.  First, the employment practice is not a specialized or distinct unit that can reasonably be seen as walled off from involvement in the kinds of criminal matters that come before the judge.  Nor has the legal services organization proposed to insulate the judge’s spouse from cases in the judge’s court.  To the contrary, the employment practice (and also the judge’s spouse) will clearly be involved in some criminal cases, and the judge “would have no reason to know” which ones.  Second, employment consequences may become relevant in a criminal case at any stage of the proceedings, depending on what pleas are being negotiated, offered, or considered.  Third, unlike the organization’s criminal defense lawyers, whose participation in a criminal case may be clear to everyone, including the public, from the papers or court appearances or an organizational chart, an employment attorney’s involvement in a criminal case is both unpredictable and undisclosed.

          The practical effect of this complex combination of factors is that each time a defendant represented by this legal services organization comes before the judge, it is an open question whether the judge’s spouse may have provided advice about employment consequences “to the criminal defense attorney, or directly to the client, or to the assigned prosecutor.”  At any point in the lifetime of the criminal case, employment consequences could become relevant.  It seems that the judge will not know whether, in a particular case, his/her spouse has in fact provided advice on possible employment consequences; but the judge certainly knows that his/her spouse’s job responsibilities have not been limited to avoid that possibility.  Requiring disqualification “only” after the judge actually learns that his/her spouse was consulted does not change that underlying dynamic and would, in our view, offer too much opportunity for strategic disqualification.

          Relatedly, we conclude that remittal is impracticable here.  The judge would need to make full disclosure on the record of the basis for disqualification in each case involving this legal services organization, and then inquire into the judge’s spouse’s involvement or non-involvement in that case as of the current date, even if the matter had previously come before the judge at a prior calendar part.  We note that the disclosure cannot be limited to the prosecutor and institutional defender, because each individual defendant’s voluntary, affirmative consent is also required for remittal of disqualification in his/her own case (see Opinions 25-167; 21-22[A]; 22 NYCRR 100.3[F]).

          Accordingly, on these facts, we conclude that a judge whose spouse works for the employment practice of a local legal services organization must disqualify in criminal matters where a defendant is represented by that organization, and remittal is unavailable.  The judge may wish to consult with an administrative or supervising judge about possible administrative solutions in light of our conclusions here.