Opinion 11-94

September 15, 2011

Please Note: Sections 100.3(E)(1)(e) and 100.3(F) were amended in 2018. As we recognized in Opinion 22-162, these changes mean that remittal is no longer possible if the judge's child "personally appears in the courtroom during the proceeding or is likely to do so" (22 NYCRR 100.3[E][1][e][i]). Please see Sections 100.3(E)(1)(e) and 100.3(F) and/or Opinion 22-162 for more information.

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:         After a judge’s child’s employment with a law firm as a summer student associate ends, the judge must disqualify him/herself, subject to remittal, when the law firm appears, if the judge’s child was involved in the case. In all other cases in which the law firm appears, the judge need not disqualify him/herself or disclose his/her child’s former association with the law firm as a summer student associate.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinions 11-127; 09-04; 06-14; 98-29 (Vol. XVI).

Opinion:

         An appellate judge whose child was temporarily employed by a law firm as a summer student associate advises that he/she disqualified him/herself from the firm’s cases “[a]s soon as [the judge’s child] was hired.” The judge asks whether he/she may resume presiding over the firm’s cases “[w]hen the summer is over.” The Committee assumes the judge's child has not received a commitment for future full-time employment with the law firm after graduation from law school, nor is such an application from the child pending.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). 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]), and must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge knows that a person within the fourth degree of relationship to him/her is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1]; 100.3[E][1][e]).

         The Committee has previously advised that while a judge’s child is temporarily employed by a law office as a summer law intern, the judge must disclose his/her child’s position whenever an attorney from the law office appears in the judge’s court (see Opinion 09-04). The judge then must determine whether his/her child had any involvement in the particular matter before the court. If the child was not involved, the judge may preside in the matter if he/she can be fair and impartial. However, if the child had any involvement, the judge must disqualify him/herself (see id.). Such disqualification is subject to remittal after full disclosure of the child’s employment relationship with the law firm on the record, provided all parties are represented by counsel (see id.; 22 NYCRR 100.3[F]).¹

         Once the judge’s child’s summer student associate position ends and the child does not contemplate future full-time employment with the law firm after law school graduation, the judge must continue to disqualify him/herself, subject to remittal, when the law firm that employed the child appears if the judge’s child was involved in the case (see 22 NYCRR 100.3[E][1][e]; Opinion 09-04).² In all other cases in which the law firm appears, the judge need not disqualify him/herself or disclose his/her child’s former association with the law firm as a summer student associate.

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         ¹As the inquiring judge presides in an appellate court, disclosure may not be feasible, in which case the judge must disqualify him/herself (cf. Opinion 98-29 [Vol. XVI]).

         ²In the Committee’s view, the judge may rely on his/her child to inform him/her of the cases in which the child was involved, without further inquiry (cf. Opinion 06-14 [judge need not conduct an investigation to determine if a party appearing before him/her is insured by the same company that is a defendant in a civil action filed by the cooperative of which the judge is a propriety lessee]). If during the normal course of a proceeding, however, the judge learns that the judge’s child was involved in a particular matter, the judge should disqualify him/herself (see id.).