Opinion 12-102

June 14, 2012

Please Note: In December 2020, the legislature enacted Judiciary Law § 9, which states: “Any judge who recuses himself or herself from sitting in or taking any part in the decision of an action, claim, matter, motion or proceeding shall provide the reason for such recusal in writing or on the record; provided, however, that no judge shall be required to provide a reason for such recusal when the reason may result in embarrassment, or is of a personal nature, affecting the judge or a person related to the judge within the sixth degree by consanguinity or affinity.”

Digest:         A judge, disqualified from hearing a matter because one party is a first-degree relative of the judge, need not inform his/her co-judge of this relationship and should not make any unnecessary, voluntary disclosure of the relationship while the litigation is pending.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(E)(1); 100.3(E)(1)(d)-(e); Opinions 12-154; 08-95; 08-80; 07-102; 07-18; 99-170 (Vol. XVIII); 92-111 (Vol. X). 

Opinion:

         A judge whose stepchild is a defendant in a vehicle and traffic law matter in the judge’s court recognizes that he/she cannot preside over the matter but is uncertain whether the conflict is “a blanket one that extends over the whole court.” The inquiring judge believes that his/her co-judge is unaware of the family relationship and, therefore, asks “whether I am obligated to inform my new co-judge that this defendant is my step[child].”

         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 lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). In addition, a judge must disqualify him/herself in situations where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), including in certain circumstances when a person related to the judge by blood or marriage participates in a proceeding (see 22 NYCRR 100.3[E][1][d]-[e]).

         Clearly, the inquiring judge cannot preside over a matter in which his/her stepchild is a party (see 22 NYCRR 100.3[E][1][d][I]).

         However, the conflict is personal to the inquiring judge and, as the Committee has held in other analogous circumstances, does not extend to the entire court (see e.g. Opinions 12-154; 99-170 [Vol. XVIII]; 92-111 [Vol. X]). As for whether disclosure of the relationship is required, the Committee has previously advised that a judge is not required in all circumstances to disclose the reason for exercising disqualification from a particular matter (see Opinion 07-102). The Committee has also advised that “an unnecessary, voluntary announcement of [judicial or quasi-judicial] status” to the presiding judge or finder of fact in the course of litigation, “even if well-intentioned, may be perceived as an inappropriate invocation of such status to further the private interests of” the judge (Opinion 07-18; accord e.g. Opinions 08-95 [a judge who has filed a civil action should not disclose his/her judicial status to the presiding judge]; 08-80 [a part-time lawyer judge who is appearing as an attorney in a jury trial should not voluntarily reveal his/her judicial status to prospective jurors during voir dire ]).

         For similar reasons, under the circumstances presented, there is a risk that an unnecessary, voluntary disclosure by the inquiring judge of his/her familial relationship to a litigant who is appearing before his/her co-judge “may be perceived as an inappropriate invocation of [the inquiring judge’s judicial] status to further the private interests of” his/her relative (Opinion 07-18; see also 22 NYCRR 100.2[C]).

         Therefore, under the circumstances presented, the inquiring judge should not make any unnecessary, voluntary disclosure of the familial relationship to his/her co-judge while the litigation is pending (cf. Opinion 07-18 [a court attorney-referee who is a party in a civil litigation should not voluntarily disclose his/her status as such to the presiding quasi-judicial officer, and should advise his/her attorney-spouse not to do so, unless relevant, related, or necessary]).