Opinion 08-212

December 4, 2008

Digest:         A judge is disqualified, subject to remittal, when his/her first cousin, the Corporation Counsel for a local municipality, appears before the judge. The judge is also disqualified, subject to remittal, when other attorneys from that office appear before him/her, or when the municipality which the first cousin serves is a party.

Rules:       22 NYCRR 100.0(C); 100.2(A); 100.2(B); 100.3(E)(1)(e); 100.3(F); Opinions 07-216; 05-87; 98-29 (Vol. XVIII); 96-139 (Vol. XV); 90-91 (Vol. VI); 89-127 (Vol. IV).

Opinion:

         The inquiring judge has a first cousin who serves as the Corporation Counsel for a local municipality within the jurisdiction of the judge’s court. Aware that he/she is disqualified whenever the cousin appears before him/her, the judge asks about his/her obligations when (a) other attorneys from his/her first cousin’s office appear and (b) when the municipality the first cousin’s office represents is a party in the judge’s court.

         Pursuant to the Rules Governing Judicial Conduct, a judge 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]) and shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge also shall not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge, therefore, must disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned, including when the judge knows that a person related to the judge within the fourth degree of relationship is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]). A judge’s first cousin is a relative within the fourth degree of relationship (see 22 NYCRR 100.0[C]).

         In Opinion 98-29, we advised that an appellate judge whose spouse was the Deputy Chief Corporation Counsel in charge of the tort division was disqualified, subject to remittal, in all cases involving the municipality in which the spouse served. As we stated there, “the judge’s spouse occupies an office which is sufficiently elevated within the Corporation Counsel’s hierarchy as to warrant the inference of direct or indirect involvement in a substantial number, if not all, tort cases against the City that emanate from the county.” Opinion 98-29.

         The Committee subsequently applied this reasoning in Opinion 07-216, concluding that a judge whose sibling was the District Attorney for a municipality was disqualified, subject to remittal when any attorney in that office appeared before the judge. Opinion 07-216; see also Opinion 05-87 (attorney in charge of legal services organization). In reaching that determination in Opinion 07-216, we distinguished several prior opinions in which a judge’s relative was one of many line attorneys in an office, rather than in a significant leadership position. See, e.g., Opinions 96-139 (Vol. XV); 90-91 (Vol. VI); 89-127 (Vol. IV).

         The Committee can discern no basis to differentiate between a spouse, a sibling, or a first cousin – all of whom are within the fourth degree of relationship (see 22 NYCRR 100.0[C]). Accordingly, the judge is disqualified, subject to remittal, where that is possible (22 NYCRR 100.3[F]), if either an assistant Corporation Counsel in his/her cousin’s office or the municipality that office serves appears before the judge.