Opinion 09-97

April 23, 2009

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 first cousin’s spouse is an assistant district attorney/investigator for the District Attorney in the same county where the judge presides must disqualify him/herself in any case where his/her first cousin’s spouse is involved, including where the District Attorney’s office makes an application for a search warrant. Because an application for a search warrant is an ex parte proceeding, remittal of the disqualification is not permitted. And, because the judge’s first cousin’s spouse’s involvement in the underlying matter will not necessarily be apparent from the search warrant application, the judge must inquire in each case as to whether and to what extent his/her first cousin’s spouse is involved.

Rules:          22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1)(e); 100.3(F); Opinions 08-50; 04-100; 89-112 (Vol. IV); Joint Opinion 07-114/07-120.

Opinion: 

         A judge advises that his/her first cousin's spouse is an Assistant District Attorney/Investigator in the District Attorney's Office for the same county where the judge presides. The judge further advises that he/she is not assigned to hear criminal cases, but on rare occasions, he/she may hear and decide an application for a search warrant. The judge asks whether he/she must inquire as to his/her first cousin’s spouse’s involvement in any search warrant application that comes before him/her.

         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 shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must 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]). Thus, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned, including where the judge knows that a person acting as a lawyer in a proceeding or who is likely to be a material witness in a proceeding is the spouse of the judge’s fourth degree relative (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]).

         The Committee previously has advised that a town justice is not required to disqualify him/herself or to disclose on the record that his/her first cousin is an assistant district attorney when either the District Attorney or another assistant district attorney appears before him/her (see Opinion 89-112 [Vol. IV]; see also Joint Opinion 07-114/07-120). However a judge must disqualify him/herself when the judge’s first cousin’s spouse appears as an attorney (see Opinion 89-112 [Vol. IV]). Nevertheless, the judge’s disqualification is subject to remittal (see 22 NYCRR 100.3[F]; Joint Opinion 07-114/07-120), unless a party appears without an attorney (see Opinion 04-100).

         The judge in the present inquiry also must disqualify him/herself in any case where his/her first cousin’s spouse has any involvement, including when the District Attorney’s office makes an application for a search warrant. Because the judge’s first cousin’s spouse’s involvement in any such case will not necessarily be apparent from the search warrant application, the judge must inquire in each case as to the extent of his/her first cousin’s spouse’s involvement, if any. And, should the judge learn that his/her first cousin’s spouse was involved, the judge must disqualify him/herself from the proceeding.

         While remittal of disqualification is available in some cases where a judge’s fourth degree relative appears or is otherwise involved as an attorney, that is not the case when a matter is before the judge ex parte (see Opinion 08-50). Therefore, because an application for a search warrant is submitted and decided ex parte, the judge in the present inquiry cannot accept remittal of his/her disqualification when his/her relative is involved in a search warrant application.