Opinion 09-04

January 29, 2009

Please Note: Sections 100.3(E)(1)(e) and 100.3(F) were amended in 2018. As we recognized in Opinion 22-162, these changes mean that remittal is no longer possible if the judge's child "personally appears in the courtroom during the proceeding or is likely to do so" (22 NYCRR 100.3[E][1][e][i]). Please see Sections 100.3(E)(1)(e) and 100.3(F) and/or Opinion 22-162 for more information.

Digest:         A judge whose child is a law intern for the summer with a local law office must disclose his/her child’s position whenever an attorney from the law office appears in the judge’s court. The judge then must determine whether his/her child has had any involvement in the particular matter before the court. If so, the judge must disqualify him/herself, subject to remittal. If not, the judge may preside in the matter if he/she can be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3; 100.3(E)(1)(e); 100.3(F); Opinions 07-100; 95-90 (Vol. XIII); 91-125 (Vol. VIII); 90-127 (Vol. VI); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge asks whether he/she must disqualify him/herself when the law office where his/her child is a law student summer intern appears in the judge’s court. The judge advises that his/her child may intern with the District Attorney’s office, the Public Defender’s office or a private law 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]). In particular, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Therefore, a judge must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge knows that a person within the fourth degree of relationship to him/her is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]).

         The Committee previously has advised that a judge must disqualify him/herself when a lawyer from a private law firm that was employing the judge’s child as a summer associate appears in the judge’s court (see Opinion 95-90 [Vol. XIII]; 90-127 [Vol. VI]), even where the judge’s child is not connected with the department at the law firm that is responsible for the matter or with the lawyer handling the matter (see Opinion 90-127 [Vol. VI]). But, in Opinion 07-100, where a judge’s child wished to serve as an unpaid legal extern in the local District Attorney’s office, the Committee advised that the judge could preside in cases involving that office as long as his/her child did not appear in the judge’s court and was not involved in any matters heard by the judge.

         The Committee is now of the view that when a judge’s child serves as a law student intern or summer associate with either a public or private law office, the judge must disclose his/her child’s position whenever an attorney from that law office appears in the judge’s court. In addition, the judge must determine whether his/her child had any involvement in the particular matter before the court. If the judge’s child was involved in the matter, the judge must disqualify him/herself. However, the judge’s disqualification is subject to remittal (see 22 NYCRR 100.3[F]). Therefore, if the judge believes that he/she can be impartial and is willing to preside, he/she may do so after disclosing his/her child’s involvement in the matter, and 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, and their agreement is incorporated into the record (see id.). If the judge’s child was not involved in the matter, but a party nevertheless objects to the judge’s continued participation, whether to exercise recusal is solely within the judge’s discretion after considering the circumstances of the particular case (see People v Moreno, 70 NY2d 403 [1987]).

         The Committee continues to adhere to its prior Opinion 91-125 (Vol. VIII), advising that a judge must disqualify him/herself in any proceeding where a law firm that employs the judge’s daughter-in-law who is a law school graduate not yet admitted to the bar appears in the judge’s court (see 22 NYCRR 100.3). Once a law firm employs a law school graduate full-time, he/she is a member of the firm who shares in the firm’s income. However, Opinions 95-90 (Vol. XIII) and 90-127 (Vol. VI) are overruled, and Opinion 07-100 is modified to the extent it is inconsistent with this opinion.