Opinion 12-143

September 13, 2012

Digest:         An individual subject to the Rules Governing Judicial Conduct may attend criminal proceedings involving a 4th degree relative by blood or marriage, including a step-relative.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C), Opinions 10-197; 09-46; 07-205; 07-178; 06-101; 05-14; 04-126; 99-24 (Vol. XVII); 90-26 (Vol. V).

Opinion:

         An individual subject to the Rules Governing Judicial Conduct asks if he/she may attend criminal proceedings involving a 4th degree relative by blood or marriage. The inquirer advises that he/she does not preside in the court where the criminal proceedings will be heard .

         An individual subject to the Rules Governing Judicial Conduct must 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]). Thus, such an individual may not lend the judicial office’s prestige to advance the private interests of others (see 22 NYCRR 100.2 [C]).

         The Committee previously has advised that a judge who has a child does not forfeit his/her right to parent that child (see Opinion 07-178). Therefore, a full-time judge may sit in the audience and observe proceedings in which the judge’s child is an attorney and where the judge’s child is a party, but only if the proceeding is held in a court located outside the county where the judge presides and where it is unlikely that the judge is known (see Opinions 90-26 [Vol. V]; 99-24 [Vol XVII]). Also, a full-time judge may accompany his/her minor child to Family Court where the child will testify (see Opinion 07-178), may act as parental representative of a minor child before an adjudicative tribunal (see Opinion 06-101), may observe his/her child argue an appeal before a multi-judge bench (see Opinion 04-126), and may attend and observe court proceedings involving his/her adult child (see Opinion 07-205). In the Committee’s view, a “judge’s attendance in court, in the obvious role of parent,” does not give rise to an appearance of impropriety, nor is it reasonable to conclude that the judge is lending the prestige of judicial office to advance the private interest of the judge’s child (id.).

         Most recently, the Committee advised that a judge may accompany his/her friend to court appearances relating to the friend’s divorce in the same county where the judge presides, but should not draw attention to his/her presence or judicial status (see Opinion 10-197).

         For similar reasons, it is the Committee’s view that a judge may attend criminal proceedings involving his/her 4th degree relative by blood or marriage (including a step-relative) provided the judge does not act as an attorney in the matter, does not have any ex parte contact with the judge presiding in the matter, and does not invoke his/her judicial office or otherwise lend the prestige of his/her judicial office for his/her relative’s benefit (cf. Opinions 09-46 [judge may visit third degree relative in jail and/or discuss that relative’s case with Public Defender]; 07-178 [judge may accompany minor child to Family Court when child testifies as complainant in juvenile delinquency case]). Therefore, the inquirer may attend criminal proceedings involving 4th degree relative by blood or marriage.

         The Committee now is of the view that an individual subject to the Rules Governing Judicial Conduct may attend criminal proceedings involving his/her 4th degree relative by blood or marriage (including a step-relative) in any county where such proceedings are pending and therefore modifies prior Opinions 99-24 (Vol. XVII) and 90-26 (Vol. V) (judge may attend proceeding only outside county in which he/she presides).