Opinion 11-99

October 11, 2011

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

Dear Justice:

         This responds to your inquiry (11-99) regarding your ethical obligations when attorneys from the respective law firms of your law clerk’s sibling and the law clerk’s sibling’s spouse appear before you.

         The Committee has previously determined that a judge, whose law clerk is related within the fourth degree of relationship to several attorneys who practice in the judge’s court, need not recuse him/herself when those attorneys appear, but should disclose the relationship to all parties and their attorneys and insulate the law clerk from participation in the case (see Opinion 99-49 [Vol. XVII]).

         Your law clerk’s sibling is related to your law clerk within the fourth degree of relationship (see 22 NYCRR 100.0[C]). Therefore, you are ethically required to disclose the relationship to all parties and their attorneys when your law clerk’s sibling or your law clerk’s sibling’s partners or associates appear before you, and to insulate the law clerk from the case.

         Similarly, when your law clerk’s sibling’s spouse or his/her partners or associates appear before you, you should disclose the relationship to all parties and their attorneys, and insulate your law clerk from the case. In the Committee’s view, the fact that your law clerk’s sibling will likely benefit economically from any fees his/her spouse earns from such cases warrants such action.

          Opinion 09-154, which you cite in your inquiry, is distinguishable as there the judge’s law clerk’s spouse was the attorney appearing in the judge’s court. In that case, disqualification subject to remittal is required because the judge’s law clerk could directly benefit economically from the fees paid to his/her spouse or to his/her spouse’s law firm. Such a direct economic benefit is not a factor where your law clerk’s sibling or sibling’s spouse is appearing.

         Enclosed, for your convenience, is Opinion 99-49, which is directly on point.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Enc.