Opinion 10-146

October 20, 2010

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

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 Town Justice must disqualify him/herself when his/her siblings appear in the judge’s court and, because one sibling is the Town Supervisor, also must disqualify him/herself in any case in which the Town is a party.

Rules:          22 NYCRR 100.1; 100.2(A);100.2(B); 100.3(E)(1); 100.3(E)(1)(d)(I), (ii); 100.3(E)(1)(e); 100.3(F); Opinion 07-73.

Opinion:

         A candidate for Town Justice whose siblings are town officials - one is the Town Supervisor and one is a Town Election Inspector - asks whether these family relationships will pose any conflict of interest or reason for disqualification if he/she is elected town justice.

         A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1) and avoid impropriety and the appearance of impropriety in all the judge’s activities (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]), including where the judge’s sixth degree relative is a party to the proceedings; is an officer, director or trustee of a party (see 22 NYCRR 100.3[E][1][d][I], [ii]); or where the judge’s fourth degree relative is likely to be a material witness in the proceeding (see 22 NYCRR 100.3[E][1][e]). Under specified conditions, the judge’s disqualification may be subject to remittal (see 22 NYCRR 100.3[F]). In addition, 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, should either of the inquiring judge’s siblings appear in the judge’s court as parties in their individual capacities, the judge must disqualify him/herself (see 22 NYCRR 100.3[E][1][d][I]). Disqualification for this reason is not subject to remittal (see 22 NYCRR 100.3[F]).

         Similarly, if one of the judge’s siblings is likely to be a material witness in a proceeding in the judge’s court, the judge must disqualify him/herself (see 22 NYCRR 100.3[E][1][e]). However, disqualification for this reason is subject to remittal, but only if no party appears pro se (see Opinion 07-73). Consequently, if the judge discloses the basis for his/her disqualification and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate, the judge may participate in the proceeding (see 22 NYCRR 100.3[F]).

         Also, because one of the judge’s siblings is the Town Supervisor, the judge must disqualify him/herself in any case in which the Town is a party (see 22 NYCRR 100.3[E][1][d][ii]). Disqualification for this reason also is subject to remittal, but again only if no party appears pro se (see 22 NYCRR 100.3[F]; Opinion 07-73).