Opinion: 99-146

October 21, 1999

Digest: An appellate judge need not affirmatively disclose that the judge's spouse has been employed on an occasional, part-time, per diem basis by a law firm appearing before the appellate court, but should recuse himself or herself if the spouse has had any involvement with the case.

Rule:  22 NYCRR 100.3(E)(1)(e); 100.3(F);
           Opinions 98-29 (Vol. XVI); 95-35 (Vol. XIII);
           93-08 (Vol. X); 90-91 (Vol. VI); 90-44 (Vol. V).


            An appellate court justice, whose spouse has performed occasional legal services on a part-time basis for a law firm that is appearing before the appellate court on a separate and unrelated matter, inquires whether the judge is disqualified from participating in the argument and disposition of that case, or is required to disclose the spouse's relationship, and exercise recusal, subject to remittal of disqualification. The justice observes that the procedures for remittal of disqualification pursuant to 22 NYCRR 100.3 (F) present practical difficulties at the appellate level.

            Section 100.3(E)(l)(e) of the Rules Governing Judicial Conduct provides:

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

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(e) the judge knows that the judge or the judge's spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such person, is acting as a lawyer in the proceeding.
            This Committee has written a series of opinions interpreting this section. In Opinion 90-44 (Vol. V), we stated that an appellate justice, whose daughter-in-law was an assistant counsel to a department of state government, was not disqualified from participating in appeals involving that department unless the daughter-in-law was involved in that specific case. Similarly, in Opinion 90-91 (Vol. VI), the Committee concluded that a judge was not disqualified, and need not disclose a spousal relationship where the judge's spouse was employed in a large public law office and another attorney from that office was appearing before the judge, unless the judge's spouse had any involvement in the case. In Opinion 93-08 (Vol. X), we wrote that a judge need not disclose the fact that the judge's spouse was a employed as a part-time first assistant county attorney in those cases in which the County Attorney appeared unless the judge's spouse had any involvement in the cases. On the other hand, in Opinion 95-35 (Vol. XIII), we wrote that where a judge's spouse has a continuing counsel relationship with a law firm, and not merely a retainer interest in an occasional case, the judge would be disqualified from presiding in cases in which any member or associate of that firm appeared. Again, in Opinion 98-29 (Vol. XVI), we advised that an appellate division justice should recuse himself or herself in any appeal in tort cases brought against a municipality where the judge's spouse served as the deputy chief of the tort division of the municipality's counsel.

            The bright line in these opinions is that where the judge's spouse is employed on a continuing, full-time basis in a position where the spouse would likely be involved, directly or indirectly, in a substantial number of cases brought before the court in which the judge sits, the judge would be disqualified from participating in any cases in which that law firm is involved, unless remittal is obtained after disclosure of the spouse's relationship with the law firm. That situation is not present in this instance, with the result that the inquiring judge is not disqualified from participating in appeals in which that firm participates, and is not required to disclose the spousal relationship, provided the judge's spouse had no involvement whatever in the particular case.