Opinion 03-19

March 6, 2003

Digest:            (1) A judge who is a sixth degree relation to an attorney is prohibited from appointing the attorney to represent indigent defendants pursuant to Article 18-B of the County Law. (2) A judge who is a fourth degree relation to an attorney must recuse himself or herself, subject to remittal, when the attorney appears in his or her court; (3) Part 36 of the Rules of the Chief Judge does not preclude other judges in the court who are not related to the attorney from appointing the attorney to represent indigent defendants in criminal cases nor are other judges in the court who are not related to the attorney precluded from presiding over cases in which the attorney appears.

Rule:               County Law, Article 18-B; 22 NYCRR 36.1(b)(1); 100.3 (C)(3);100.3(E)(1)(e);100.3(F); Joint Opinion 95-166/97-78 (Vol. XVI).

OPINION:

            Two City Court judges seek advice concerning the following situation: the sister-in-law of one of the judges is married to an attorney who wishes to accept assignments under Article 18-B of the County Law and presumably might otherwise be appearing in that court. The following questions are asked: (1) Is the judge whose sister-in-law is the spouse of the attorney precluded from assigning cases to the attorney? (2) May the judge hear cases in which the attorney is appearing? (3) May the non-related judge assign and hear cases involving that attorney?

            Section100.3(C)(3) of the Rules Governing Judicial Conduct prohibits a judge from appointing a person in a judicial proceeding who is a relative within the sixth degree of relationship of either the judge or the judge’s spouse, or the spouse of such related person. This rule precludes the judge who is related to the attorney from appointing the attorney to represent indigent defendants pursuant to the provisions of Article 18-B of the County Law. A judge who is not related to the attorney, however, is not precluded from making such an appointment. Although Section 36.1(b)(1) of the Rules of the Chief Judge prohibits judges from appointing relatives of other judges in certain specified proceedings, the prohibition does not apply to criminal cases. Joint Opinion 95-166, 97-78 (Vol. XVI).

            Pursuant to section 100.3(E)(1)(e) of the Rules Governing Judicial Conduct, a judge must disqualify himself or herself if the judge knows that an attorney appearing in a case is related within the fourth degree to the judge or the judge’s spouse. Disqualification under this provision is subject to remittal if the parties who have appeared and have not defaulted, and their lawyers , all agree that the judge should not be disqualified, and the judge believes that he or she can be impartial. 22 NYCRR 100.3(F). This rule precludes only the judge who is related to the attorney from presiding over cases in which the attorney appears. It does not require any other judge in the court who is not related to the attorney to disqualify himself or herself in such a case.