Opinion 15-86

April 23, 2015

Digest:         The Rules Governing Judicial Conduct do not require disclosure or disqualification solely because an attorney appearing before a part-time lawyer judge is the sibling of the judge’s law firm associate.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 13-49; 12-72; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         The inquiring part-time judge is also a partner in a law firm. The judge asks whether disclosure or disqualification is required when his/her law firm associate’s sibling, or another member of the sibling’s law firm, appears before the judge as an attorney. The judge notes that his/her associate’s sibling’s law firm frequently appears in the judge’s 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]). A judge must disqualify him/herself in a case where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14). 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]).

         The Committee has advised that a part-time judge who is also a law firm associate may preside over cases in which another associate’s fiancé(e) appears as a prosecutor, without disclosure of the relationship (see Opinion 13-49). The Committee explained:

The judge’s relationship with his/her fellow associate is not one that mandates the judge’s disqualification ... when the associate’s future spouse or spouse appears before the judge as an assistant district attorney. Nor, given the facts presented, does the Committee believe that the inquiring judge’s impartiality might reasonably be questioned in matters where the assistant district attorney appears (see 22 NYCRR 100.3[E][1]). Although a judge must not permit his/her partners or associates to practice law in the court in which he/she is a judge (see 22 NYCRR 100.6[B][3]; Opinion 10-94), this prohibition does not extend to the spouse or future spouse of the judge’s law firm colleagues.

         Here, of course, the inquiring judge is a partner (i.e., an owner) of the law firm, and his/her associate’s relative is in private practice, not government service. Nevertheless, the Committee believes the inquiring judge’s impartiality cannot reasonably be questioned based solely on the relationships presented. There is no indication the judge has any direct or indirect interest whatsoever in the associate’s sibling’s law firm, or any personal connection with those attorneys.¹ Thus, provided the judge can be fair and impartial, the judge has no duty to disclose or disqualify solely because his/her law firm associate’s sibling, or the associate’s sibling’s law firm colleagues, appear before the judge as attorneys (see Opinion 13-49; 22 NYCRR 100.3[E][1]).

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       ¹ Indeed, there is no indication that the judge’s associate has any direct or indirect financial interest in his/her sibling’s law firm (cf. Opinion 12-72 [noting that spouses, unlike other adult relatives, “ordinarily reside in the same household and maintain both an emotional and financial relationship”).