Opinion 10-52

March 10-11, 2010

Digest:         (1) A judge must exercise disqualification, subject to remittal, when the judge’s spouse’s first cousin, who is an attorney, appears in the judge’s court. The judge may not appoint him/her as a law guardian, nor should the judge ask his/her co-judge to assign the judge’s spouse’s first cousin to the judge’s part. (2) A judge may continue to use an email address created when the judge was an attorney for personal matters.

Rules:         22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(B)(6); 100.3(C); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); 100.4(G); Opinion 09-242.

Opinion:

         A full-time judge expects to be assigned to a court in which his/her spouse’s first cousin (the judge’s cousin-in-law) regularly appears as an assistant public defender. The judge asks whether he/she may preside over matters in which his/her cousin-in-law appears. Also the judge states that his/her cousin-in-law “is a very good lawyer” and asks whether the judge may, either directly or by agreement with his/her co-judge, assign cases to the judge’s cousin-in-law as a law guardian. Finally, the judge asks whether he/she may continue to use an email address the judge purchased and used in the course of his/her law practice before he/she became a judge solely for personal matters.¹ The judge states that he/she used the email address not only for his/her legal practice but also “for personal emails with my children’s school and parents at school.”

         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 disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including when the judge’s spouse, or a person known by the judge to be within the fourth degree relationship to the judge’s spouse, is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]).

         Because the judge in the present inquiry is a fourth degree relative of the assistant public defender who regularly appears in the court to which the judge will be assigned (see 22 NYCRR 100.0[C]), the judge must disqualify him/herself whenever the assistant public defender appears before him/her (see 22 NYCRR 100.3[F]). However, the judge’s disqualification is subject to remittal (see 22 NYCRR 100.3[F]). Therefore, the judge may disclose the reason for his/her disqualification on the record, and if 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 the judge believes that he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see id.). The judge must incorporate the parties’ agreement in the record of the proceeding (see id.).

         Nevertheless, if the judge must disqualify him/herself so frequently that his/her relationship to the assistant public defender interferes with the proper performance of the judge’s judicial duties, either the judge should not continue to preside in the court or the Public Defender should assign a different assistant to the court (see Opinion 09-242).

         The judge also asks whether he/she may appoint his/her cousin-in-law to serve as a law guardian. A judge must exercise the power of appointment impartially and on the basis of merit and must avoid nepotism and favoritism (see 22 NYCRR 100.3[C]). Because the judge’s cousin-in-law is the judge’s spouse’s fourth degree relative, the judge may not appoint him/her or recommend to his/her co-judge that he/she appoint the judge’s cousin-in-law (see 22 NYCRR 100.3[C][3]).

         It is the Committee’s view that the judge may continue to use his/her law office e-mail address solely for personal matters. The Committee trusts that the judge will not permit former clients or others to draw the judge into prohibited ex parte communications or the practice of law, whether by email or otherwise (see 22 NYCRR 100.3[B][6]; 100.4[G]).

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             ¹ The email address is in the form of john@johndoelaw.com or mary@maryroelaw.com.