Opinion 08-180

October 23, 2008

Digest:         There is no per se ethical impropriety should a judge’s sibling be appointed an arbitrator or SCAR Officer. However, the judge’s sibling must be otherwise eligible for such appointment, must be appointed pursuant to the applicable provisions of law, and the inquiring judge must not be involved in any way in the appointment process.

Rules:       22 NYCRR 28.3 (a); 28.4(a); 28.4(d); 100.0(C); 100.2; 100.2(A); 100.2(B); 100.3(C)(3); 202.58 (d)(1); 202.58(e)(1).

Opinion:

         A full-time judge who presides in a city court asks if his/her attorney/sibling is precluded from appointment as a Small Claims Assessment Review Officer (SCAR Officer) and/or as an Arbitrator pursuant to Part 28 of the Rules of the Chief Judge (Arbitrator). The inquirer advises that judges who preside in city courts do not make such assignments.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge shall not allow family, social, political, or other relationships to influence a judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).

         With respect to judicial appointments, a judge must avoid nepotism and favoritism, and must refrain from recommending a relative within the fourth degree of relationship of either the judge or the judge’s spouse or the spouse of such person for appointment or employment to another judge serving in the same court (see 22 NYCRR 100.3[C][3]). A judge’s sibling is within the fourth degree (see 22 NYCRR 100.0[C]).

         The judge in the present inquiry, however, does not ask whether he/she can appoint a relative to serve as an arbitrator or a SCAR Officer, but instead asks whether his/her sibling is precluded from appointment because of the sibling’s familial relationship to a judge.

         Pursuant to Part 28 of the Rules of the Chief Judge, arbitrators are appointed by a county arbitration commissioner from a list of qualified attorneys-at-law admitted to practice in the State of New York (see 22 NYCRR 28.3 [a]; 28.4[a]). While an arbitrator who is related by blood, marriage or professional ties to a party or his counsel is disqualified for cause from serving (see 22 NYCRR 28.4[d]), Part 28 does not appear to include any provision that renders a relative of a judge of the Unified Court System ineligible for appointment as an arbitrator.

         Similarly, the Chief Administrator of the Courts establishes panels of SCAR Officers found qualified to hear small claims tax assessment review proceedings (see 22 NYCRR 202.58 [d][1]) to be assigned by the assessment review clerk of the county (see 22 NYCRR 202.58[e][1]). Again, Part 202 of the Uniform Rules for Trial Courts does not appear to include any provision that renders a relative of a judge of the Unified Court System ineligible for appointment as a SCAR Officer.

         In the Committee’s view, therefore, there is no per se ethical impropriety should the inquiring judge’s sibling be appointed an arbitrator or SCAR Officer. However, the judge’s sibling must be otherwise eligible for such appointment, must be appointed pursuant to the applicable provisions of law, and the inquiring judge must not be involved in any way in such appointment process (see 22 NYCRR 100.3[C][3]).