Opinion 12-154

October 25, 2012

Digest:            A judge need not disclose that an attorney appearing before him/her is a first-degree relative of the judge’s co-judge or disqualify him/herself, as the judge’s impartiality cannot reasonably be questioned solely on that basis.

Rules:             22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.6(B)(3); Opinions 11-125; 11-124; 09-239; 09-47(A); 08-129; 05-124; 05-114; 99-170 (Vol. XVIII); 95-15 (Vol. XIII); 92-111 (Vol. X); 92-23 (Vol. IX); 90-111 (Vol. VI); 89-105 (Vol. IV); 89-100 (Vol. IV); 88-68 (Vol. II).

Opinion:

            A part-time judge serving in a two-judge court asks whether disqualification is required when his/her co-judge’s child appears before him/her as an attorney. The judge notes that a prior opinion issued 23 years ago appears to require disclosure and, if a party objects, disqualification (see Opinion 89-100 [Vol. IV]). Consequently, the inquiring judge now contends that such a rule would unnecessarily burden and disrupt the administration of justice in the town court.

            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]). Thus, a judge must disqualify him/herself in a matter where the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

            In Opinion 09-239, the Committee advised that a part-time judge is not ordinarily disqualified from presiding over matters in which a co-judge’s close relative appears as counsel, as long as the judge can be fair and impartial, although the judge should disclose the relationship if only two judges preside in the court (see Opinions 08-129 [spouse]; 05-124 [brother]; 05-114 [brother-in-law]; 99-170 [Vol. XVIII] [parent or sibling]; 95-15 [Vol. XIII] [spouse]; 90-111 [Vol. VI] [spouse]; 89-105 [Vol. IV] [son]; 89-100 [Vol. IV] [son and daughter-in-law]). In some circumstances, the Committee has also required disqualification if any party objects (see Opinions 92-23 [Vol. IX]; 89-100 [Vol. IV]; 88-68 [Vol. II]), although the Committee has recognized certain exceptions, including when one or both judges are full-time judges (see Opinion 05-124).

            On reconsideration of these prior Opinions, the core question, simply put, is whether a judge’s impartiality can reasonably be questioned solely because an attorney appearing before the judge is closely related to another judge of the court (see 22 NYCRR 100.3[E][1]). The Committee concludes it cannot, and “[t]here does not appear to be any reason why a different rule ... should be required in the case of a two-judge court” (Opinion 95-15 [Vol. XIII]). Moreover, as the Committee previously noted, “[o]ne purpose of having two judges [in the same court] is that one judge can hear cases in which the other judge is disqualified” (Opinion 92-111 [Vol. X] [a judge may hear matters involving the local police department, whose acting police chief is the child of the inquirer's associate judge]). In essence, it is the nature and quality of the relationship between any two judges in one court that is the determining factor in resolving any appearance issue, rather than the simple number of judges in any given court.

            Thus, as long as the inquiring judge concludes that he/she can be fair and impartial and absent any different, additional factor that may require disclosure or disqualification,¹ neither disclosure nor disqualification is required under the circumstances presented.² As always, the judge may, in his/her discretion, choose to disclose the relationship (cf. Opinion 11-124).

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     ¹ For example, the Committee recognizes that, in some courts, a judge may socialize with a judicial colleague’s family. If that is the case, the judge should consider his/her relationship with the particular attorney relative who is appearing before him/her (see Opinion 11-125). Similarly, if the co-judge’s relative is also the co-judge’s partner or associate in a law firm, the inquiring judge cannot permit the attorney relative to appear in the court (see 22 NYCRR 100.6[B][3]).

     ² The Committee hereby modifies Opinions 09-239; 09-47(A); 08-129; 05-124; 92-23 (Vol. IX); 89-100 (Vol. IV); 88-68 (Vol. II), and other Opinions mentioned herein, to the extent they are inconsistent with this Opinion.