Opinion 19-72

June 20, 2019

Digest:         A judge need not disqualify him/herself, disclose the relationship nor insulate his/her secretary from a case involving a large public utility that employed the judge’s secretary’s non-lawyer, non-executive relatives in a division utterly uninvolved in the case.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(d)(ii)-(iii); 100.3(E)(1)(e); Opinions 16-74; 13-26; 03-11; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge who previously issued a decision dismissing a lawsuit against a large public utility has now been asked to consider motions to renew, reargue and/or vacate the decision. While reviewing these motions, the judge realized that his/her secretary has two first-degree relatives who worked for the utility.¹ The secretary’s relatives are non-lawyers and never served as officers or directors of the utility. Moreover, the relatives, and the division they work for, have absolutely no involvement in the lawsuit. The judge asks if he/she must now disclose the employment relationships and/or disqualify him/herself from the case.

         A judge must always avoid impropriety and 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 social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Where, as here, disqualification is not specifically required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), judges must still disqualify themselves in cases where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). However, where disqualification is not required under objective standards, a judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         Where a judge’s staff member has a conflict, it is ordinarily sufficient to insulate the staff member and disclose the insulation (see e.g. Opinion 13-26). But we also now consider whether there is any reasonable basis to question the staff member’s impartiality. After all, we have said neither disclosure nor disqualification is required in cases where a hospital is a party and the presiding judge’s first-degree relative is a faculty member and division chief of the hospital, provided the relative’s division is not involved in the matter (see Opinions 16-74; 03-11).

         Here, the judge’s secretary’s non-lawyer relatives have absolutely no involvement in the case. They never served as executives or counsel to the public utility, and worked in a separate division of the utility entirely unconnected with the case.² We conclude neither the judge’s nor his/her secretary’s impartiality can reasonably be questioned here (cf. 22 NYCRR 100.3[E][1]). Thus, neither disclosure nor disqualification is required, nor must the judge insulate his/her secretary from the matter, given the positions and responsibilities of the secretary’s non-lawyer relatives within the public utility.

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¹ Relatives within the first degree include a spouse, parent, step-parent, child, or step-child. The judge did not previously remember or consider their employment when issuing prior decisions in the case.

² We note these categories by analogy with a judge’s obligations when a sixth-degree relative “is an officer, director or trustee of a party” (22 NYCRR 100.3[E][1][d][ii]) or “has an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][d][iii]), or when his/her fourth-degree relative “is acting as a lawyer ... or is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]).