Is a judge disqualified when a lawyer appearing before the judge is married to the judge's confidential law clerk?

Plain-English summary

The committee addressed a situation in which an attorney was employed as a confidential law assistant to a judge while the attorney's spouse appeared as a lawyer before that judge. It separated three questions: whether the judge is disqualified per se, whether the law-clerk spouse must remove herself from the matter, and whether the practitioner-spouse is disqualified from appearing.

On the judge, the committee applied Canon 3(C)(1) of the Code of Judicial Conduct, adopted in New York at 22 N.Y.C.R.R. 100.3(c). The first four grounds for disqualification did not apply, so the question was whether the judge's impartiality "might reasonably be questioned" under the catch-all fifth ground. Surveying federal cases interpreting the parallel language of 28 U.S.C. section 455 and New York authority, the committee concluded that the mere fact that an appearing lawyer's spouse works as the judge's confidential law clerk does not by itself require recusal. Two points drove the result: the possibility of favoritism toward a judicial employee's spouse, without more, has uniformly been held insufficient to question a judge's impartiality; and any concern that confidential information might pass from the clerk to the spouse is met by screening the clerk from contact with the case, the same "Chinese Wall" used for former government lawyers (ABA 342 (1975); N.Y. State 502 (1979)). The committee stressed that this addressed only per se disqualification; the particular facts of a case may still require or make appropriate the judge's recusal, and any doubt should be resolved in favor of disqualification, subject to remittal by written agreement under Canon 3(D). A minority of the committee would have the judge step aside as a matter of course where recusal would not cause significant delay, such as in a multi-judge court, to avoid an appearance of partiality.

On the law-clerk spouse, the committee held she has an independent duty under Canon 9 and EC 9-4 and EC 9-6 to inform the judge whenever her spouse's law firm is involved in a matter before her employer and to remove herself from all involvement in and knowledge of the case. On the practitioner-spouse, the committee held he is not disqualified, because the duty to consider disqualification rests on the judge, not the appearing lawyer, and any potential impropriety would be the judge's or the clerk's to guard against; it added that imposing a bar on the practitioner-spouse, given the due-process dimension of the right to counsel of one's choice, might be constitutionally impermissible. Canon 9 still requires the practitioner-spouse to disclose the relationship to the judge and other parties at the earliest opportunity and to decline employment by a client seeking a hoped-for advantage from the relationship. The committee overruled N.Y. State 374, which had reached a contrary result. The first and third questions were answered in the negative and the second in the affirmative.

Currency note

This opinion was issued in 1983, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009, and it interprets the then-current Code of Judicial Conduct (later succeeded by the Rules Governing Judicial Conduct at 22 N.Y.C.R.R. Part 100). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a judge recuse when an appearing lawyer is married to the judge's law clerk?

A: No, not per se. The committee held the judge's impartiality is not automatically subject to reasonable question on those facts alone, as long as the law clerk is screened from the case.

Q: What must the law clerk do?

A: The opinion held the clerk must tell the judge whenever the spouse's firm appears before the judge and must remove herself from all involvement in and knowledge of that matter, under Canon 9 and EC 9-4 and 9-6.

Q: Is the lawyer-spouse barred from appearing before the judge?

A: No. The committee held the duty to consider disqualification falls on the judge, not the lawyer, though the lawyer must disclose the relationship to the judge and parties at the earliest opportunity. This overruled N.Y. State 374.

Q: Can the parties waive the judge's disqualification?

A: Yes, where the judge does decide to step aside, the parties may remit the disqualification by written agreement under Canon 3(D) and 22 N.Y.C.R.R. 100.3(d).

Background and rules framework

The opinion applied Code of Judicial Conduct Canon 3(C)(1) and (D), as adopted in New York at 22 N.Y.C.R.R. 100.3(c), to the judge, and Canon 9 with EC 9-4 and EC 9-6 of the Code of Professional Responsibility to the lawyer-spouses. The current analogue for the judge is the disqualification standard of the Rules Governing Judicial Conduct (22 N.Y.C.R.R. Part 100) and ABA Model Code of Judicial Conduct Rule 2.11; the lawyer-side appearance-of-impropriety standard of former Canon 9 was not carried forward as a stand-alone rule in the Model Rules of Professional Conduct.

Citations and references

Rules of Professional Conduct:

• Code of Judicial Conduct Canon 3(C)(1), Canon 3(D)
• NY Canon 9, EC 9-4, EC 9-6
• 22 N.Y.C.R.R. 100.3(c)

Statutes:

• 28 U.S.C. section 455 (federal judicial disqualification, parallel language)

Cases:

• Wolfson v. Palmieri, 396 F.2d 121 (2d Cir. 1968), former law clerk appearing does not require per se disqualification
• United States ex rel. Weinberger v. Equifax, Inc., 557 F.2d 456 (5th Cir. 1977), relative's firm appearing does not disqualify per se
• Simonson v. General Motors Corp., 425 F. Supp. 574 (E.D. Pa. 1976), screening a law clerk from the firm's case

Other opinions cited:

• ABA 342 (1975); N.Y. State 502 (1979): screening former government lawyers ("Chinese Wall")
• N.Y. State 374: overruled by this opinion
• N.Y. State 384 (1975); N.Y. State 541 (1982): duty to consider disqualification rests on the judge

See also

• NY State Bar Op. 574: Judge whose former lawyer represents a party
• NY State Bar Op. 571: Board attorney also serving as town justice
• NY State Bar Op. 583: DA business and rental ties with defense lawyers

Source

• Landing page: https://nysba.org/opinion-548/