Opinion 16-121

October 12, 2016

PERSONAL & CONFIDENTIAL

Dear :

         This responds to your inquiry (16-121) asking what your ethical obligations are in cases involving a probation officer who is your fifth-degree relative by marriage. The probation officer “supervises some defendants in [your] court, prepares some pre-sentence investigation reports, and files some violations of probation proceedings.” You are “barely acquainted with the probation officer” and neither you nor your spouse has a close relationship with him/her.

         The Rules Governing Judicial Conduct do not prohibit a judge from presiding when a relative by blood or marriage beyond the fourth-degree appears before him/her as a lawyer or material witness (see 22 NYCRR 100.3[E][1][e]). Therefore, you have no obligation to disclose or recuse in matters involving this probation officer, provided you can be fair and impartial.

                                       Very truly yours,

                                       George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Family Court Judge

                                       Acting Justice of the Supreme Court

                                       Committee Co-Chair