Joint Opinion 07-114 and 07-120

September 6, 2007

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) A judge must exercise recusal, subject to remittal, in cases where the judge’s first cousin appears as an attorney, but need not disclose or recuse where other attorneys from the cousin’s law firm appear. (2) A judge must disqualify himself/herself, subject to remittal, from cases where the judge’s sibling appears as an attorney, and also where other attorneys from the sibling’s law firm appear.

Rules:          22 NYCRR 100.3(E); 100.3(E)(1)(e); 100.3(F); Opinions 06-111; 04-100; 01-07 (Vol. XIX); 95-60 (Vol. XIII).

Opinion:

         Two judges inquire separately as to their recusal obligations in proceedings where their relatives (a first cousin in one case and a sibling in the other) who are partners in local law firms appear before them, or where other attorneys from their relatives’ law firms appear before them. One inquirer is the only judge designated to hear the types of cases handled by his/her relative’s law firm, which is one of the larger firms in the area.

         Pursuant to section 100.3(E)(1)(e) of the Rules Governing Judicial Conduct, a judge must disqualify himself or 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...is acting as a lawyer in the proceeding...” 22 NYCRR 100.3(E)(1)(e). Such disqualification is subject to remittal pursuant to Section 100.3(F), unless a party to the proceeding is appearing pro se. 22 NYCRR 100.3(F); Opinions 04-100; 01-07 (Vol. XIX).

         This Committee has previously examined a judge’s recusal obligations when a relative’s law firm appears before the judge. Specifically, in Opinion 95-60, the Committee advised that while a judge must disqualify him/herself, subject to remittal, where the judge’s first cousin appears as an attorney, the judge need not disclose or recuse him/herself where a member of the cousin’s law firm appears. Opinion 95-60 (Vol. XIII); see also Opinion 94-01 (Vol. XII). By contrast, in 06-111, this Committee advised that a judge must exercise recusal, subject to remittal, when the judge’s sibling and also when a member of the sibling’s firm appears before the judge. Opinion 06-111.

         Consequently, a judge must exercise recusal, subject to remittal, in proceedings where his/her first cousin appears as an attorney, but need not exercise recusal or disclose his/her family relationship when other attorneys from the first cousin’s law firm appear before the judge. By contrast, a judge must disqualify him/herself, subject to remittal, however, in cases where his/her sibling appears as an attorney as well as in cases where attorneys from the sibling’s law firm appear. Further, in either of these cases where recusal is required, remittal is not available if a party is appearing pro se.

         The size of a law firm or the fact that a judge is the only judge in the county who can hear specific cases does not warrant a different result. In either of these circumstances, however, the Committee suggests that the judge bring the matter to the attention of the District Administrative Judge so that cases can be efficiently re-assigned, or another judge can be designated to hear those cases where recusal is not remitted.