Opinion 16-65

May 5, 2016

Digest:         A judge may appoint a qualified attorney who is also a co-judge’s first-degree relative to handle cases before other judges of the court as a special prosecutor, where the appointment is not governed by Part 36.

Rules:          22 NYCRR 8.1; 36.1(a); 36.2(c)(1); 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(e); Opinions 15-87; 14-81; 12-154.

Opinion:

         A judge with “the duty of appointing special prosecutors” in a particular county asks whether he/she may appoint the attorney child of one of his/her co-judges as a special prosecutor to handle matters before other judges of that court.¹

         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]). For example, a judge must exercise the power of appointment “impartially and on the basis of merit,” and avoid favoritism (22 NYCRR 100.3[C][3]). Also, a judge must disqualify him/herself in any case where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         The Committee has advised that a judge need not disclose that an attorney appearing before him/her is a first-degree relative of the judge’s co-judge, nor must the judge disqualify him/herself, as his/her impartiality cannot reasonably be questioned solely on that basis (see Opinions 15-87; 14-81; 12-154).

         Since the judge is not disqualified from presiding over cases involving this attorney, the judge may appoint him/her to an appropriate position, where permitted by Section 100.3(C)(3), Part 8, and Part 36. These provisions limit a judge’s ability to appoint a co-judge’s relatives (fourth degree or closer) to certain positions (see 22 NYCRR 8.1; 36.2[c][1]; 100.3[C][3]). Part 8 and 36 clearly do not govern the appointment of special prosecutors (see 22 NYCRR 8.1; 36.1[a]). Only one portion of Section 100.3(C)(3) could conceivably apply to the appointment of special prosecutors. However, it does not prohibit appointment of a co-judge’s relative “as an appointee in a judicial proceeding,” but only appointment of the judge’s own relatives by blood or marriage (see 22 NYCRR 100.3[C][3]).

         Therefore, the judge may appoint an otherwise qualified attorney as special prosecutor, even though the attorney is a first-degree relative of his/her co-judge.

___________________________

            ¹ The judge would not, of course, appoint the attorney as a special prosecutor in a case assigned to the attorney’s parent (see 22 NYCRR 100.3[E][1][e]).