Opinion 26-34

March 26, 2026

Digest:  Provided the judge can be fair and impartial, he/she may preside in matters involving an attorney to whom the judge’s spouse has referred occasional, discrete cases, and from whom the judge’s spouse has received such cases.  The judge need not make any disclosure.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(c), (e); 100.3(E)(2); Opinions 20-126; 15-33.

Opinion:

          The inquiring judge’s spouse, who works in a specialized area of law, occasionally refers cases to another attorney and occasionally accepts referral of cases from him/her.  The judge indicates they “do not have a formal arrangement, and no referral fees are paid” between them.  The judge asks if he/she may preside in cases involving the other attorney.

          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 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 from any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge knows that the judge’s spouse “is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]), or has an “interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][c]).  A judge must also “keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse” (22 NYCRR 100.3[E][2]).

Clearly, a judge “may not preside over any matters in which the spouse was involved or has an economic interest, including those referred by the spouse, or matters in which the attorney appearing before the judge has an ongoing counsel relationship with the judge’s spouse” (Opinion 15-33).

However, a judge’s ethical “obligations based on a business or financial relationship between their spouse and a particular individual are necessarily fact-dependent” (Opinion 20-126).  We have advised that neither disqualification nor disclosure is required when “attorneys to whom the judge’s spouse has referred occasional, discrete cases, or from whom the judge’s spouse has received such cases, appear in the judge’s court” (Opinion 15-33).  In reaching this conclusion, we emphasized (id.):

Critically, the present inquiry focuses on cases in which, although the judge’s spouse has a professional connection with a lawyer or law firm appearing before the judge, the spouse has no economic interest in the case before the judge and has never participated in it; the spouse is neither acting as a lawyer in the matter nor appearing to do so. Moreover, the professional connection at issue does not reach the level of a formal association in the practice of law.

          Here, likewise, the attorney appearing before the judge does not have an ongoing counsel relationship with the judge’s spouse, but instead they occasionally refer cases to each other.  The present inquiry reveals no additional facts or connections under which the inquiring judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]). 

          Thus, the inquiring judge need not disqualify or disclose the spousal relationship when attorneys to whom the judge’s spouse has referred occasional cases or from whom the judge’s spouse has received such cases appear in the judge’s court, provided the judge believes he/she can be fair and impartial.