Opinion 14-171

December 11, 2014

Digest:         A Judge is not disqualified from presiding when the court clerk’s second degree relative appears as an attorney but must insulate the court clerk from his/her relative’s cases.

Rules:          22 NYCRR 100.2; 100.2(A); 100.4(E); Opinions 96-85 (Vol. XIV); 94-49 (Vol. XII).

Opinion:

         A criminal court judge asks whether he/she may preside when an attorney who is the chief clerk’s second degree relative appears in the judge’s court as an assistant public defender. The judge advises that the chief clerk and his/her relative have a close relationship, but have not resided in the same household for over forty years. Each is married and each has a family. The judge also advises that because the chief clerk is assisted only on court days, it is not possible to insulate the chief clerk from his/her relative’s cases.

         A judge 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]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.4[E]).

         The Committee has previously advised that a judge is not disqualified from presiding when a court clerk’s spouse is an attorney appearing in the judge’s court (see Opinion 96-85 [Vol. XIV] [spouse]; 94-49 [Vol. XII] [spouse]). However, to avoid even the appearance of impropriety, the Committee advised that the judge must insulate the court clerk from the cases involving the court clerk’s relative (see Opinion 96-85). Similarly, the inquiring judge may preside when the court clerk’s second degree relative appears in the judge’s court as a defense attorney, but must insulate the court clerk from his/her relative’s cases.

         If it proves difficult to insulate the chief clerk from his/her relative's cases, the Committee suggests the judge may explore possible alternatives, such as using another court clerk (if there is one) to process the relative’s cases, or requesting the consent of the prosecutor and the public defender to permit the chief clerk to process cases in which the chief clerk's relative appears. The judge may also contact his/her Administrative or Supervising Judge for assistance.