Opinion: 97-39

May 8, 1997

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”


Digest:         A judge, whose fiancée is an assistant district attorney in the large, urban county where the judge sits, is not disqualified from presiding in criminal matters, provided there is no appearance by the fiancée before the judge and there has been no involvement by the fiancée in any matter that comes before the judge.


Rules:          22 NYCRR 100.2(B); 100.3(E)(1)(e), 100.3(F); Opinions 96-42 (Vol. XIV), 93-116 (Vol. XI), 93-08 (Vol. X), 90-91 (Vol. VI).


         A Supreme Court justice who presides over criminal cases in a large metropolitan area, in a county with numerous assistant district attorneys, asks the Committee whether there must be recusal in criminal matters inasmuch as the judge's fiancée is an assistant district attorney in the same county.

         In Opinion 93-116 (Vol. XI), the Committee reiterated its view as to the necessity for recusal where a judge's spouse, as assistant district attorney, had any involvement in the case now before the judge. As stated by the Committee:


In Opinions 93-08, Vol. X and 90-91, Vol. VI, this Committee stated that a judge whose spouse serves as a district attorney must recuse himself or herself from a case if the spouse 'had any involvement in the case.' It is the opinion of this Committee that the inquiring judge's impartiality might reasonably be questioned if the judge presides over cases in which the judge's spouse had any involvement as an assistant district attorney including screening the case (such as deciding whether to send the case to a superior criminal court, or taking statements from witnesses). Accordingly, the judge should disqualify himself or herself from all such cases, subject to remittal of disqualification pursuant to section 100.3(d). [now §100.3(F).]

         In Opinion 90-91 (Vol. VI), the Committee addressed the related question of whether and under what circumstances disclosure of the spousal relationship is required. As stated by the Committee:

This Committee has reconsidered this Opinion, [i.e. Joint Opinion 88-101 and 88-102] and has determined that, at least with respect to large, public law offices, the judges need not affirmatively disclose the fact that their spouses are employed as assistant district attorneys or assistant corporation counsels, as their spouses do not have an interest that could be substantially affected by the outcome of the proceeding. If an objection is made by a party, it is a matter for the judge's conscience to disqualify himself or herself. If the judge feels that he or she can be impartial, the judge need not recuse himself or herself. The judge, however, must recuse himself or herself if the spouse has had any involvement in the case, subject to the provisions covering disclosure and remittal.


         At issue in both instances was whether a judge, under such circumstances, could be perceived as allowing his or her "family, social, political or other relationships to influence the judge's judicial conduct or judgment" 22 NYCRR 100.2(B). Clearly, that perception would be overwhelming where the spouse appears before the judge as a lawyer - a circumstance specifically prohibited under section 100.3(E)(1)(e) of the Rules - or where the spouse had participated in the matter.


         The Committee is of the view that from the standpoint of the perception of partiality, there is no sound reason to regard the relationship between a judge and a prosecutor who are engaged to be married any differently than that of a judge and prosecutor who are married. The dangers sought to be protected against in both instances are identical and therefore require the same remedies.


         Thus, applying the principles expressed in our earlier opinions, the Committee concludes that the inquiring judge must recuse himself or herself in any case in which the judge's fiancée had any involvement, subject to remittal of disqualification pursuant to section 100.3(F) of the Rules Governing Judicial Conduct. Nor, of course, may the fiancée appear before the judge.


         However, with respect to matters in which there had been no participation by the fiancée, the judge need not recuse if satisfied that he or she could preside impartially in cases being handled by other attorneys in the office. Nor, in view of the fact that the court is in a large metropolitan area, with a substantial criminal docket being handled by a district attorneys' office with many assistants, is disclosure of the fact that the judge's fiancée is employed as an assistant district attorney required in each and every criminal case presided over by the inquiring judge. See e.g. Opinion 96-42 (Vol. XIV). In short, if there was any involvement in the case by the fiancée, disclosure and recusal are required, subject to remittal. If there was no involvement, disclosure and recusal are not required.