Opinion 09-46

March 12, 2009

NOTE: Please see Opinion 18-120 concerning discussions with an adult relative’s counsel.

Digest:         A judge may visit his/her third degree relative in jail and/or discuss that relative’s case with the relative’s Public Defender, as long as the judge does not have any ex parte contact with the judge presiding in the matter and does not invoke his/her judicial office or otherwise lend the prestige of his/her judicial office for his/her relative’s benefit.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); Opinions 06-101; 07-205; 07-178.

Opinion:

         A part-time judge’s third degree relative has been charged with a felony in a neighboring municipality located in the same county where the judge presides. The judge asks whether it is permissible to visit his/her relative at the county jail and facilitate the relative’s communications with his/her assistant public defender.

         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 not lend the prestige of judicial office to advance the private interests of another (see 22 NYCRR 100.2[C]).

         The Committee has advised previously that a judge may attend and observe court proceedings involving the judge’s 21-year old child (see Opinion 07-205 ); act as a minor child’s parental representative when answering a summons before an administrative agency (see Opinion 06-101); and accompany the judge’s minor child to Family Court when the child testifies as the complainant in a juvenile delinquency case (see Opinion 07-178).

         Although the judge in the instant inquiry is not the criminal defendant’s parent, the Committee sees no impropriety in the judge visiting his/her incarcerated third degree relative or discussing the case with the relative’s assistant public defender, as long as the judge does not have any ex parte contact with the judge presiding in the matter (see 22 NYCRR 100.3[B][6]; Opinion 07-178). Nor may the judge invoke his/her judicial office or otherwise lend the prestige of his/her judicial office for his/her relative’s benefit ( 22 NYCRR 100.2 [C]; Opinion 07-178).