Opinion 15-164

September 10, 2015

Digest:         A judge whose first-degree relative is a part-time attorney for the county department of social services may preside in criminal cases alleging welfare fraud where the agency is the victim or complainant, provided this relative has no involvement in the case.

Rule:            Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-06; 11-131; 11-106(A); 09-220; 06-111; 05-86; 99-17; 98-159; 97-130/97-147; 91-125; 89-127; 87-08; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         A judge asks whether he/she may continue to preside in welfare fraud cases where the county department of social services is the victim or complainant, now that the agency has hired the judge’s first degree relative. As a part-time attorney, the relative handles matters before support magistrates, such as support petitions and violations of orders involving individuals who receive public assistance. The judge says the DA, rather than the agency’s in-house attorneys, prosecutes the welfare fraud cases.

         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 disqualify him/herself in several specified circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality might be reasonably questioned (see 22 NYCRR 100.3[E][1]). For example, a judge must disqualify him/herself if he/she knows that a person within the fourth degree of relationship by blood or marriage is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]). Conversely, where disqualification is not mandatory under these objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         Clearly, a judge may not preside in a case where the judge’s first degree relative acts as a lawyer (see 22 NYCRR 100.3[E][1][e]; Opinion 11-106[A] [prohibition applies if the (first degree relative) will “be involved in the litigation in some way,” for example, by offering “input” to outside trial counsel]). If this relative works for a private law firm, the judge is also disqualified, subject to remittal, when other attorneys in that firm appear (see e.g. Opinions 99-17; 91-125; 87-08; see also Opinion 06-111 [noting this applies to all relatives within the second degree of relationship]).

         However, if this relative works for a public law office, in a non-supervisory capacity, the judge may preside in other cases involving the agency as long as the relative is not personally involved in the case, and the judge need not disclose his/her relative’s employment relationship (see e.g. Opinions 11-131; 09-220; 05-86; 98-159; 89-127; cf. Opinion 15-06 [applying the same standard when the judge’s relative is a social worker for the probation department]).¹

         The same standard applies here, where the judge’s relative is a part-time attorney for the department of social services. Thus, the judge may preside in a criminal case alleging welfare fraud where the social services agency is the victim or complainant, provided the judge’s relative has no involvement with the case. 

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         ¹ Opinion 97-130/97-147, which requires a judge to disclose his/her child’s public sector employment and obtain the parties’ consent to preside, based solely on the agency’s relatively small size, it is inconsistent with the Committee’s many subsequent opinions. The Committee believes the current rule provides ample protections when a judge’s child’s public sector employer appears before the judge, regardless of the size of the office. Accordingly, Opinion 97-130/97-147 is overruled.