Opinion 05-86

September 8, 2005

Digest:         (1) A judge whose child serves as an assistant corporation counsel is not required to recuse in a case where the city Police Department is the arresting and/or investigating agency, and the arrest leads to an indictment before the judge, and the charges are prosecuted by the local District Attorney; (2) If the matter is prosecuted by the local Corporation Counsel, the child may not appear before the judge, who must recuse if the child had any involvement, in or out of court, in the case.

Rule:            22 NYCRR 100.3(E)(1); Opinion 96-42 (Vol. XIV).

Opinion:

         A Supreme Court judge informs the Committee that the judge’s child may take a position as an assistant corporation counsel and inquires if he/she must recuse where the City’s Police Department is the arresting or investigating agency in criminal cases which result in an arrest leading to an indictment(s) before the judge.

         At the outset, we note that presumably the criminal cases before the judge are prosecuted by the District Attorney. Under such circumstances, the fact that the judge’s child serves as an attorney in the office of the Corporation Counsel does not give rise to an obligation of recusal. The mere fact that the child is an attorney with another governmental agency that appears in the judge’s court, does not render the proceeding one “in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1).

         If, however, the Corporation Counsel is the prosecuting authority in the criminal proceedings described by the judge, the judge’s child may not appear and the judge must recuse if the child had any involvement, in or out of court, in the matter. 22 NYCRR 100.2; 100.3(E)(1). We note that the court where the judge presides is in a large metropolitan county, and, as previously held by the Committee under such circumstances, where another staff attorney is appearing in a matter in which the child had no involvement, no disclosure or recusal is required. See, Opinions 96-42 (Vol. XIV).