Opinion 03-136

March 1, 2004

Digest:         The chief judge of a city court must consult with and seek the approval of the Deputy Chief Administrative Judge, in devising and implementing procedures for avoiding appearances of nepotism and favoritism with respect to the judge’s exercise of supervisory authority over his/her child who has recently been elected to the same court.

Rules:          22 NYCRR 100.2; 100.2(B); 100.3(C)(3); 100.3(E)(1); Opinions 98-09 (Vol. XVII).

Opinion:

         The inquiring judge is the chief judge of a city court whose child has recently been elected an associate city court judge. The judge seeks the Committee’s advice as to the ethical considerations involved in the judge’s exercise of supervisory authority over his/her child and has written to the Deputy Chief Administrative Judge requesting permission to continue as chief judge.

         The inquiry implicates three rules of judicial conduct. Section 100.2(B) of the Rules Governing Judicial Conduct, which states that “(a) judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment, section 100.3(E)(1) which states that “(a) judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned,” and section 100.3(C)(3) which requires a judge to avoid nepotism or favoritism.

         The major concerns involve the assignment of individual judges and the disposition of possible staff, litigant and attorney complaints that might arise concerning the new judge.

         Although this appears to be a matter of first impression the Committee has addressed a somewhat related matter in Opinion 98-09 (Vol. XVII). In that matter the Committee cautioned against a chief judge of a city court having any role in the assignment to other judges of any cases in which the judge’s brother represents the defendant. We advised that the cases should be assigned administratively by the court clerk or other administrative designee.

         The prophylactic measures advised in Opinion 98-09 (Vol. XVII), presented few challenges to their satisfactory implementation. Here, however, since the

assignment of cases and parts, and the making of changes and substitutions in such assignments would cover the entire workload of the judge’s child and not just sporadic appearances as in Opinion 98-09 (Vol. XVII), the challenges are greater. Clearly, under these circumstances, avoidance of even the appearance of nepotism and of impropriety is of paramount concern. 22 NYCRR 100.2; 100.3(C)(3).

         It is not, however, feasible for this Committee to attempt a detailed solution to the various problems that may arise. Instead, the appropriate course at this point is for the inquiring judge to consult with and seek the aid of the Deputy Chief Administrative Judge in devising a set of procedures which would avoid such issues even being raised. Whether this is possible is not for the Committee to determine, but at this point is best left for resolution by the judge and the administrative authorities.