Opinion 20-154

October 29, 2020

Please Note: Opinion 99-96, distinguished in this opinion, was subsequently overruled in part by Opinion 21-14. 

Digest:     A judge is not disqualified from presiding over an action merely because the judge knows that the unrepresented defendant has, in a completely unrelated legal matter, retained the judge’s sibling as counsel.

Rules:       Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(2); 100.3(F); Opinions 17-150; 13-132; 06-111; 99-96.

Opinion:

         The inquiring judge presides over a mortgage foreclosure action in which the defendant has failed to appear and the plaintiff has moved for the appointment of a referee. The judge has become aware that the judge’s sibling, an attorney, represents the defendant in an unrelated matter. The judge asks if it is ethically permissible to continue to preside in the foreclosure case.

         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 is disqualified in specifically enumerated circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), subject to remittal in appropriate circumstances (see 22 NYCRR 100.3[F]). A judge must “keep informed about the judge’s personal and fiduciary economic interests,” and “make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse and minor children residing in the judge’s household” (see 22 NYCRR 100.3[E][2]).

         At times, the economic interests of close family members might reasonably place a judge’s impartiality in question. Certainly, if the judge’s sibling’s law firm appears before the judge, disqualification is required (see Opinion 06-111). Indeed, we have said a judge is disqualified, subject to remittal, in cases involving their spouse’s current legal clients (see Opinion 99-96 [noting a disclosure requirement for the spouse’s former clients]).

         We decline to extend Opinion 99-96 to circumstances where the judge’s sibling’s legal clients are involved in a case before the judge, but are either unrepresented or are represented by other counsel. While the Rules require a judge to “make a reasonable effort to keep informed” about their spouse’s personal economic interests, they do not impose the same requirements for siblings or other adult relatives (see 22 NYCRR 100.3[E][2]). We note that siblings typically have separate economic interests, do not share a household, and have no reasonable, non-burdensome way to keep track of each other’s financial dealings.

         Where, as here, the judge’s sibling (see Opinion 17-150), the sibling’s law firm (see Opinion 06-111), and the sibling’s personal attorneys (see Opinion 13-132) have no involvement whatsoever in the foreclosure action, we believe the judge’s impartiality cannot reasonably be questioned merely because the named defendant in the foreclosure action has retained the judge’s sibling in a completely unrelated legal matter.

         We therefore conclude the judge is not disqualified from presiding over the action on this basis and disclosure is not required. Assuming the judge can be fair and impartial, the judge may preside.