Opinion 04-126

October 28, 2004

Please Note: Although the outcome of the present opinion remains unchanged, one of the authorities discussed (Opinion 90-26) was modified in 2012.  In Opinion 12-143, the Committee advised that an individual subject to the Rules Governing Judicial Conduct may attend criminal proceedings involving his/her 4th degree relative by blood or marriage in any county where such proceedings are pending.

Digest:         A judge, as an ordinary, lay spectator, may observe his/her child arguing an appeal before a multi-judge court.

Rules:          22 NYCRR 100.2(C); Opinion 90-26 (Vol. V).

Opinion:

         The inquiring judge is the parent of an attorney who is an assistant district attorney assigned to the Appeals Bureau. The judge states that he/she would like to “observe her in action” i.e. in the argument of an appeal.

         As noted by the judge, at issue is the extent and applicability of Opinion 90-26 (Vol. V). In that opinion the Committee concluded that a judge may watch the judge’s daughters, who are litigating attorneys, in court, but only in a county other than the one where the judge acts and only as long as the judge is likely to remain an unknown observer. The reason for the restriction was the perceived need to avoid creating the impression that the judge was lending “the prestige of his or her office to advance the private interests of others” i.e., the judge’s daughters. 22 NYCRR 100.2(C).

         In assessing that danger in the present instance, the Committee is of the opinion that it would be unreasonable to apply the same restrictions to an appearance by a child before a multi-judge court. The roles of appellate and trial court judges are different, and that difference, together with the plural nature of the appellate bench, diminishes considerably any of the dangers perceived in Opinion 90-26 (Vol. V). We, therefore, conclude that it would be unduly restrictive and unnecessary to preclude the judge from discreetly observing his/her daughter, as an ordinary, lay spectator in the courtroom, while the daughter is arguing an appeal before a multi-judge bench.