Opinion 05-41

April 21, 2005

Digest:          A judge is disqualified from presiding in any proceeding in which the attorney appearing is the son of the judge’s spouse, subject to remittal of disqualification

Rule:             22 NYCRR 100.3(E)(1)(e); 100.3(F).

Opinion:

           A newly-elected part-time village judge informs the Committee that the judge’s spouse’s son, an attorney with the county Public Defender’s office, appears before the judge. There is no substantial contact between them “on a personal basis” and the judge and the attorney’s parent “have only been married for approximately five years.” The judge seeks an advisory opinion on the matter.

           Section 100.3(E)(1)(e) of the Rules Governing Judicial Conduct, provides that a judge is disqualified in a proceeding where “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 a person, is acting as a lawyer in the proceeding.” 22 NYCRR 100.3(E)(1)(e).

           The judge’s step-son clearly falls within that provision, and there is no basis for altering the proscription based upon the degree of closeness or the length of the relationship. Accordingly, the judge is disqualified in any proceeding in which the judge’s spouse’s son appears as attorney. That disqualification, however, is subject to remittal in accordance with the procedures set forth in section 100.3(F) of the Rules. 22 NYCRR 100.3(F).