Opinion 08-182

October 23, 2008

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:         A judge whose sibling is an Assistant New York State Attorney General is not disqualified from presiding in any case involving the New York State Attorney General’s Office. The judge is disqualified, subject to remittal, in any case where his/her sibling appears or is involved.

Rules:          22 NYCRR 100.0(C);100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinion 07-216; Joint Opinion 07-114/120; Opinion 98-14 (Vol. XVI).

Opinion: 

         A Judge whose sibling is now employed as an Assistant New York State Attorney General assigned to a unit that handles a very specialized class of cases, asks whether he/she is disqualified from presiding in all cases involving the New York State Attorney General’s Office.

         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 must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including where the judge knows that he/she is related within the fourth degree of relationship to a person acting as a lawyer in a proceeding (see 22 NYCRR 100.3[E][1][e]). A judge’s sibling is a relative within the fourth degree of relationship (see 22 NYCRR 100.0[C]).

         The Committee previously has advised that a judge is disqualified from presiding in any case where the judge’s sibling or other lawyers from the sibling’s law firm appear in the judge’s court (see Joint Opinion 07-114/07-120). However, where a judge's relative is employed as an attorney for a large public law office such as a Corporation Counsel, District Attorney, or Public Defender, the judge need not disqualify him/herself or disclose that his/her relative is employed as an attorney with the same office when other attorneys from such law offices appear in the judge's court, so long as the judge's relative had no involvement in the matter (see Opinion 07-216). Further, the Committee has advised that there is not the same unity of interest among Assistant Attorneys General throughout the State as there presumably is among members of a private law firm (see Opinion 98-14 [Vol. XVI]).

         Therefore, the judge in the present inquiry is not disqualified from presiding and need not disclose that his/her sibling is an Assistant New York State Attorney General in all cases where the New York State Attorney General’s office is involved. If the judge’s sibling appears or is involved in a case, however, the judge is disqualified from presiding (see 22 NYCRR 100.3[E][1][e]), subject to remittal (see 22 NYCRR 100.3[F]). In this circumstance, if the judge believes that he/she can be impartial, the judge may disclose the basis for his/her disqualification and that he/she can be impartial and continue to participate, if the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree that the judge should not be disqualified. Any such agreement shall be incorporated in the record of the proceeding (see id.). However, as this provision requires the consent of the parties and their lawyers (see id.), remittal is not available when a party is self-represented.