Opinion 07-06

May 23, 2007

Digest:         A judge need not disclose nor exercise recusal when any staff member of the District Attorney, who is the judge’s first cousin once removed, appears before the judge.

Rules:          22 NYCRR 100.3(E)(1)(e); Opinion 92-66 (Vol. IX).

Opinion:

         The adopted child of a judge’s first cousin has been appointed Acting District Attorney in the judge’s county. The judge asks, “Can I preside over cases prosecuted by [an Assistant District Attorney] from the DA’s office as long as I disclose the relationship of my cousin to the defendants.”

         The Rules Governing Judicial Conduct require a judge to disqualify himself/herself when 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 instant inquiry involves a District Attorney who is the child of the judge’s first cousin, i.e., the judge’s first cousin once removed. This relationship is of the fifth degree, and, therefore, beyond the kinship which requires disqualification when a member of the staff of such an individual appears before a judge. Opinion 92-66. The fact that the District Attorney is the adopted child, rather than the biological child of the judge’s first cousin, is of no consequence in our consideration of this inquiry.

         Thus, assuming the judge is confident in his/her ability to be fair and impartial, the judge need not disclose nor disqualify him/herself when a staff member of the District Attorney, who is the judge’s first cousin once removed, appears before the judge.