Opinion 15-206

December 3, 2015

Digest:         A judge is not disqualified when an attorney who is the judge’s child’s election opponent appears before him/her, provided the judge can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 11-76; 06-12; 00-78/00-80; 92-82; 92-57; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge’s child intends to seek elective judicial office. The judge asks whether, once the judge’s child becomes a candidate, the judge must recuse when a candidate opposing the judge’s child, such as the local District Attorney, appears before the judge.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always 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 case where his/her impartiality might reasonably be questioned (see generally 22 NYCRR 100.3[E][1]).¹

         The Committee has advised that a “judge may preside, where the judge’s political opponent is an attorney in the case, unless the judge doubts his or her impartiality” (Opinion 92-82). Thus, in Opinion 00-78/00-80, the Committee concluded that a judge’s impartially cannot “reasonably be questioned” (22 NYCRR 100.3[E][1]) merely because the chief assistant district attorney who is the judge’s opponent in an upcoming judicial election appears before the judge during the electoral campaign. The Committee explained:

In other words, that situation does not mandate recusal. Rather, the judge must search his or her conscience and determine whether recusal is the appropriate course to be followed. We therefore conclude that ... it is, in effect, a “discretionary decision within the conscience of the court ...” (People v. Moreno, 70 N.Y.2d 403, 405 [1987]) as to whether an appearance of impropriety arises should the judge preside where the judge’s political adversary appears as an attorney before the judge during the pendency of the electoral campaign (Opinion 00-78/00-80).

The Committee has adhered to the view, even when the judge’s election opponent has threatened to file an ethics complaint against the judge (see Opinion 06-12; accord Opinion 11-76). Similarly, a judge need not make any disclosure when the judge’s political opponent appears as an attorney, where judge “will not be affected” by the opposition (see Opinion 92-57).

         Since a judge is not disqualified when the judge’s own electoral opponent appears before the judge as an attorney, it is even less reasonable to question the judge’s impartiality in matters involving the judge’s child’s election opponent. Here, too, the decision to disclose or recuse is a purely discretionary one within the conscience of the court.

         Accordingly, this judge need not recuse when a judicial candidate who is the judge’s child’s election opponent appears before the judge as an attorney, provided the judge can be fair and impartial.

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         ¹ Where, as here, specifically enumerated disqualifying circumstances do not apply (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).