Opinion 25-63

May 15, 2025

Digest:  A Family Court judge whose spouse’s law firm has contracted with the county to provide non-exclusive representation to its Department of Children and Family Services (“DCFS”):

(1) May preside in matters where DCFS is a named party but chooses not to participate, if the spouse’s law firm was not involved in previous related matters;

(2) May order child protective service investigations under Family Court Act § 1034 that result in reports to the court;

(3) Must disqualify in matters handled by the County Attorney’s office, if the spouse’s associate is embedded in the County Attorney’s office; and

(4) Must disqualify in matters involving DCFS, even if the spouse agrees not to appear in court and the spouse’s associate will only appear before other judges.

Rules:   Family Ct Act §§ 1034, 1011, 141; 22 NYCRR 100.2; 100.2(A)-(C); 100.3(E)(1); 100.3(E)(1)(c), (e); Opinions 25-26; 15-195; 11-43.

Opinion:

          A Family Court judge’s spouse is the owner and senior partner of a law firm that has contracted with the county to provide non-exclusive legal representation to DCFS.  The spouse’s law firm also employs an associate attorney who shares office space and support staff with the County Attorney’s office.  The judge asks if he/she may: (1) preside in custody matters where DCFS is initially named as a party, but does not take a position or participate in the proceedings; (2) order a child protective service investigation under Family Court Act § 1034 in a custody matter; (3) preside over juvenile delinquency matters where attorneys from the County Attorney’s office appear; and (4) preside in DCFS matters if the spouse agrees not to appear in Family Court and the law firm’s associate will appear only before other judges.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge may not allow family or other relationships to influence their conduct or judgment (see 22 NYCRR 100.2[B]) nor permit the impression that anyone is in a special position to influence the judge (see 22 NYCRR 100.2[C]).  A judge must disqualify in proceedings where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).  This includes when the judge knows that their spouse has an interest that could be substantially affected by the proceedings, has an economic interest in a party, or is acting as an attorney in the proceeding (see 22 NYCRR 100.3[E][1][c]; 100.3[E][1][e]).

          Although a judge is not necessarily disqualified in all matters involving their spouse’s law firm’s clients, provided the spouse’s firm has no involvement in the matter and will not share in the legal fees, we reached a different result where a Family Court judge’s “spouse’s law firm has contracted with the county to provide non-exclusive legal representation to its Department of Children and Family Services” (Opinion 25-26).  As we explained (id. [citations omitted]):

As the owner and senior partner of the law firm that has contracted with the county and DCFS to provide legal representation, the inquiring judge’s spouse has significant interests, economic and otherwise, in DCFS proceedings and is likely to act as an attorney in them.  Further, the contract between the spouse’s firm and DCFS may create an impression that DCFS is in a special position to influence the judge through his/her spouse, notwithstanding that it is non-exclusive.  These interests and impressions raise a reasonable question as to the judge’s impartiality. Accordingly, we conclude the judge must disqualify him/herself from presiding over any family court case involving DCFS.

1.  Custody cases where DCFS declines to participate.

          In situations where DCFS is a named party but does not take a position or participate by appearing in court through counsel, we conclude that the judge’s impartiality cannot reasonably be questioned, and the judge may therefore preside.  An example might include a situation where DCFS previously had custody of a child who is now the subject in a custody matter.  This would also include situations where DCFS personnel or contractors are called upon to testify, provided that legal counsel does not appear with them.  

          However, if the papers before the judge reveal that the judge’s spouse or an attorney working for the spouse’s law firm previously appeared in the case, other than to disclaim any interest or position in the matter, the judge must disqualify.

2.  Ordering child protective service investigations in custody matters.

          The inquiring judge sometimes orders child protective investigations pursuant to Family Court Act § 1034 in a custody matter.  The orders require the appropriate child protective service to undertake an investigation pursuant to applicable law and report its findings to the court.  We understand that such reports can assist the court in sorting through a myriad of allegations in custody, family offense, and other proceedings.  Investigations are carried out by DCFS caseworkers, and it is unusual that legal counsel would be involved.

          Given the “wide discretion and grave responsibilities” of a Family Court judge (Family Ct Act § 141), particularly in the areas of “protect[ing] children from injury or mistreatment” and “safeguard[ing] their physical, mental, and emotional well-being” (Family Ct Act § 1011), we have said that a statutorily authorized act taken in furtherance of those responsibilities “cannot form the basis for a reasonable question about the judge’s impartiality” (Opinion 15-195).

          We therefore conclude that the judge’s ethical obligation to disqualify is not triggered by the ordering or receipt of such reports in custody proceedings.

3.  County Attorney matters.

          Juvenile delinquency (JD) and persons in need of supervision (PINS) matters are heard in Family Court and prosecuted, in the first instance, by the County Attorney, whose staff attorneys may or may not also prosecute DCFS matters.  The judge’s spouse’s law firm has embedded a staff attorney in the County Attorney’s office who works solely on DCFS matters.  Some JD or PINS matters may, at the dispositional and post-dispositional phases of the proceeding, involve DCFS (e.g. foster care placements or qualified residential treatment program placements).  The close working relationship between the spouse’s law firm and the County Attorney’s office, pursuant to a contract between the firm and the county, in our view, creates not only an apparent alignment of their interests but also a reasonable question as to the judge’s impartiality.

          Accordingly, we conclude that the judge must disqualify in juvenile matters when an attorney from the County Attorney’s office appears. 

4.  DCFS matters where the judge’s firm does not appear.

          We have previously advised that this Family Court judge “is disqualified from presiding over any family court proceedings involving DCFS” based on the contract between the judge’s spouse’s law firm and the county.  We note that the judge’s spouse is the owner and senior partner of the law firm and any benefit to the firm advances the spouse’s interests and the firm, as a whole, benefits from the contract to provide legal services (cf. Opinion 11-43). 

          Again, we previously concluded that the “interests and impressions” surrounding this particular contract “raise a reasonable question as to the judge’s impartiality” in all matters involving DCFS (Opinion 25-26).  In our view, the result does not change even if the judge’s spouse will not appear at all in Family Court and the associate will appear only before other judges.