Opinion 15-80
April 23, 2015
Digest: Provided the judge can be fair and impartial, a judge may continue to preside in a case after learning the parties have engaged in occasional, discrete business transactions with the judge’s parents’ manufacturing corporation in matters entirely unrelated to the case, and the judge need not make any disclosure.
Rules: Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(d)(i)-(iii); Opinions 15-33; 14-147; 13-24; 12-94; 07-27; 04-51; 99-146; People v Moreno, 70 NY2d 403 (1987).
Opinion:
A full-time judge asks whether he/she may continue to preside over a case after learning both parties are customers of a corporation solely owned by the judge’s parents.1 The judge has no ownership or other interest in the corporation, but his/her parents advise that over the past several years each party has occasionally transacted business in varying amounts up to approximately $1,500. The judge states that both parties are represented by counsel. Critically, there is no indication in the inquiry that the corporation is directly or indirectly involved in the case before the judge.
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 not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in any case in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other circumstances required by rule or law (see generally id.; Judiciary Law § 14). For example, a judge is disqualified if he/she knows that a person within the sixth degree of relationship to the judge by blood or marriage is a party to the proceeding, is an officer, director or trustee, of a party, or has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][d][i]-[iii]). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
The Committee has advised that a judge is disqualified, subject to remittal, when an attorney appearing before the judge rents office space in a building owned by the judge’s parents’ corporation (see Opinions 07-27; 04-51), or when commercial tenants of the judge’s children or stepchildren appear before the judge as attorneys or parties (see Opinion 13-24).2
By contrast, the Committee has advised that a judge need not disqualify him/herself or disclose the spousal relationship when attorneys to whom the judge’s spouse has referred “occasional, discrete cases,” or from whom the judge’s spouse has received such cases, appear in the judge’s court on unrelated matters (see Opinion 15-33). As the Committee explained (id. [citations omitted]):
Of course, the judge may not preside over any matters in which the spouse was involved or has an economic interest, including those referred by the spouse, or matters in which the attorney appearing before the judge has an ongoing counsel relationship with the judge’s spouse. However, no recusal is required in matters where the judge’s spouse never participated and involve attorneys or law firms with whom the spouse merely has referral arrangements in occasional, discrete cases.
Here, the parties appearing before the inquiring judge do not have an ongoing landlord-tenant relationship with the judge’s parents’ corporation, but instead have engaged in occasional, discrete business transactions with that corporation. Under these circumstances, the Committee concludes that the judge’s parents have no interest that could be substantially affected by the proceeding before the judge (see 22 NYCRR 100.3[E][1][d][iii]; compare Opinion 15-33; 99-146 with Opinions 13-24; 07-27; 04-51). Nor can the Committee perceive any other ground on which the judge’s impartiality could reasonably be questioned under these fact (see 22 NYCRR 100.3[E][1]). Thus, the judge need not disqualify him/herself from the case or make any disclosure, provided the judge concludes he/she can be fair and impartial (see generally People v Moreno, 70 NY2d 403 [1987]). Of course, if the judge doubts his/her ability to be impartial, the judge should not preside (see e.g. Opinions 13-24; 12-94).
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1 The judge’s parents’ corporation manufactures and sells certain kinds of industrial machinery and equipment.
2 A judge’s children, step-children, parents, and step-parents are first-degree relatives of the judge (see 22 NYCRR 100.0[C] [“The ‘degree of relationship’ is calculated according to the civil law system.”]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see e.g. Opinion 14-147 n1).