Opinion 11-49

April 28, 2011

Digest:         A judge need not disqualify him/herself solely because an individual appearing in the judge’s court is the sibling of the judge’s son/daughter-in-law, as long as the judge can be impartial and there is no other factor concerning such individual that would cause the judge’s impartiality to reasonably be questioned.

Rule:            22 NYCRR 100.1; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(d)-(e); Opinions 09-189; 07-102; 06-111; 02-110; 91-51(Vol. VII).

Opinion:

         A judge asks whether he/she may preside in criminal cases filed by the judge’s child’s spouse’s sibling, who has recently been assigned to the local police station.

         A judge must always avoid even the appearance of impropriety(see 22 NYCRR 100.2) and always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in situations where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). Where disqualification is not mandatory, whether it is proper to hear a particular case “is a matter confined to the conscience of the particular judge” (Opinion 91-51 [Vol. VII]; accord Opinion 07-102).

         When a person related to a judge by blood or marriage participates in a proceeding, the judge must disqualify him/herself in accordance with the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][d]-[e]).

         Although the Committee has previously addressed a judge’s disqualification obligations with respect to the judge’s sons/daughters-in-law (see e.g. Opinion 02-110) and siblings (see e.g. Opinion 06-111), it does not follow that the sibling of the judge’s son/daughter-in-law necessarily triggers any such obligations. To the contrary, the Committee has previously held that a blood relative of the judge’s aunt/uncle by marriage (i.e., a blood relative of the judge’s spouse’s aunt/uncle) “is not related to [the judge] by blood or marriage” (Opinion 09-189). Similarly, a sibling of the judge’s son/daughter-in-law is not related to the judge by blood or marriage. Therefore, disqualification is not required under 22 NYCRR 100.3(E)(1)(d)-(e).

         Here, as in Opinion 09-189, the facts presented do not reveal any other factor that would warrant either disclosure or disqualification. However, the Committee cautions that if the judge feels that he/she cannot be impartial, or if the judge believes that other factors might cause the judge’s impartiality to “reasonably be questioned,” disqualification and/or disclosure may be appropriate under the Rules Governing Judicial Conduct and the Committee’s prior opinions (22 NYCRR 100.3[E][1]; see also 22 NYCRR 100.2).