Opinion 18-27

March 29, 2018

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A judge whose second-degree relative is the First Deputy District Attorney may preside in criminal cases if he/she is satisfied that his/her relative is completely insulated from any involvement in evaluation, supervision or oversight of any matter that may be assigned to the judge.

Rules:          22 NYCRR 100.0(C); 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(E)(1)(e); Opinions 17-150; 16-67; 16-28; 08-212; 07-216; 98-29; 97-39; 90-91; 89-127.

Opinion:

         The inquiring administrative judge supervises a judge whose second-degree relative¹ is a senior supervisory member of the District Attorney’s staff. The District Attorney has proposed that the relative, who serves as First Deputy District Attorney, will be completely insulated from evaluating, supervising or overseeing any matter that is scheduled in the judge’s court and has proposed that other high-level prosecutors, not subject to the First Deputy’s supervision, would personally prosecute those cases. The administrative judge asks, in effect, whether insulation of the First Deputy will allow the judge to preside in cases involving other attorneys from the office without disclosure or disqualification.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must act at all times in a manner that promotes 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]) or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Moreover, a judge must disqualify him/herself in a proceeding in which his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge knows that a person within the fourth degree of relationship to the judge or his/her spouse, or the spouse of such a person, “is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]).

         In general, where a judge’s fourth-degree relative is an assistant district attorney, the judge is disqualified from matters in which the relative has any personal involvement (whether directly or as a supervisor), but may otherwise preside in criminal matters without disclosure or disqualification (see e.g. Opinions 97-39 [future spouse]; 90-91 [spouse]; 89-127 [child]). Where the judge’s relative holds a high-level supervisory position in a governmental office, the obligation is broader (cf. Opinion 16-67 [“The results vary depending on the relative’s role, visibility, and overall level in the agency”]). For example, where the judge’s relative heads the office and is attorney of record, the judge is disqualified, subject to remittal where permitted, for all attorneys in the office (see e.g. Opinion 08-212 [first cousin is the Corporation Counsel for a local municipality]; 07-216 [sibling is the District Attorney]; 98-29 [spouse is Deputy Chief of the Corporation Counsel’s tort division]).²

         In Opinion 16-28, we said that where a judge is satisfied that his/her relative’s employer “has an effective procedure in place to insulate the judge’s relative from any cases that may come before the judge, the judge may rely on that insulation and preside in cases involving the agency without any obligation to disclose the employment relationship or inquire about the judge’s relative’s possible involvement in the case” (Opinion 16-28).

         Of course, Opinion 16-28 involved insulation of an entry-level employee, which is undoubtedly easier than insulating a First Deputy District Attorney. Still, if the administrative judge is satisfied that the District Attorney can and will, in fact, completely insulate the First Deputy from any involvement whatsoever with any cases that may be assigned to the judge, including supervision, oversight or evaluation of any such cases, we believe the judge and his/her administrative judge may rely on these assurances. Once these insulation measures are implemented, the judge may preside in other matters involving the District Attorney’s office without the need for disclosure or disqualification.

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         ¹ Relatives within the second degree of relationship include parents, grandparents, siblings, children, and grandchildren (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, we do not distinguish between relatives by blood or by marriage.

         ² Remittal is not permitted if any party is appearing without counsel. In addition, for a relative within the second degree, such as a sibling, the judge must simply disqualify him/herself, without the possibility of remittal, if the relative personally appears in the courtroom (see Opinion 17-150).