Opinion 09-44

March 12, 2009

Digest:         A judge need not disqualify him/herself nor disclose the relationship when the law firm that employs the judge’s secretary’s child in a non-legal position appears in the judge’s court, but the judge must insulate his/her secretary from the matter.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 1200.40 (Rule 5.4); Opinions 07-50; 07-40; 06-163; 06-89; 93-38 (Vol. XI).

Opinion:

         A full-time judge asks whether he/she must disqualify him/herself when a member of a law firm that employs the judge’s secretary’s adult child appears in the judge’s court. The judge advises that his/her secretary’s adult child does not live in the same household with the judge’s secretary. According to the judge, he/she has instructed his/her secretary to refrain from discussing court matters with the child. The judge further advises that he/she has known the secretary’s adult child most of the adult child’s life and had occasionally employed him/her to care for one of his/her children. Although the judge does not explicitly state that the secretary’s child is not an attorney, the Committee assumes that is the case due to the adult child’s age and the manner in which the judge framed his/her inquiry. Finally, the judge advises that he/she can be fair and impartial when a member of the law firm that employs his/her secretary’s child appears in his/her court.

         A judge must avoid impropriety and the appearance of impropriety (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 in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has considered whether a judge must disqualify him/herself when a member of the judge’s non-legal staff is related to an individual who is employed by an office or department that regularly appears in the judge’s court. The Committee has advised that a judge need not disqualify him/herself when the court clerk’s spouse, child or parent is employed as a village police department investigator, an investigator for a district attorney’s office, or as a law enforcement officer (see Opinions 07-50; 07-40; 06-163; 06-89). Nor must a judge disqualify him/herself when a law firm that employs the judge’s law clerk’s child who is a law school graduate appears in the judge’s court (see Opinion 93-38 [Vol. XI]), as the law clerk’s child can neither appear before the judge nor share profits with the attorney who does appear before the judge (see 22 NYCRR 1200.40 [Rule 5.4]). However, in each case the Committee advised that the judge must insulate the court clerk or law clerk when the law firm or other office that employs the court clerk’s or law clerk’s relative is involved in a case in the judge’s court (see Opinions 07-50; 07-40; 06-163; 06-89; 93-38 [Vol. XI]). Similarly, in the present inquiry, it is the Committee’s view that the judge need only insulate his/her secretary from any matter involving the law firm that employs the secretary’s child but need not disclose the relationship or offer to exercise recusal.

         The Committee distinguishes opinion 05-49, where a judge’s confidential secretary had a personal relationship with an attorney who appeared before the judge. There, the Committee advised that a judge may preside over the attorney’s or his/her firm’s cases, but only if, upon disclosure, the parties and their attorneys consent, and the judge’s secretary is insulated from any such matters. In the Committee’s view, the closeness of the secretary’s relationship with the attorney warranted the more restrictive result.