Opinion 21-181

January 27, 2022

Digest:         A full-time judge may hire a fifth-degree relative as their secretary.

Rules:         22 NYCRR 8.1; 100.2; 100.2(A); 100.2(B); 100.3(C)(3); Opinion 15-132.

Opinion:

         The inquiring full-time judge has reviewed applications for a secretarial position in chambers. One applicant is “a highly qualified paralegal, who happens to be” the grandchild of the judge’s aunt/uncle, and is thus the judge’s first cousin, once removed (a fifth-degree relative). The applicant does not reside with the judge and there is no financial connection between them. The judge asks if it is ethically permissible to appoint this individual as secretary.

         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]). Therefore, a judge must not allow family, social, political, or other relationships to influence a judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).

         A judge must not make unnecessary appointments and must “exercise the power of appointment impartially and on the basis of merit” and “avoid nepotism and favoritism” (see 22 NYCRR 100.3[C][3]). Further, a judge may not appoint “a relative within the fourth degree of relationship of either the judge or the judge’s spouse or the spouse of such person” as a member of the judge’s staff (id. [emphasis added]) and must comply with the requirements of Part 8 of the Rules of the Chief Judge relating to the appointment of relatives of judges (id.). Part 8, in turn, prohibits certain appointments of an individual who “is a relative within the fourth degree of relationship, or the spouse of such relative, of any judge or the spouse of such judge of the same court within the county in which the appointment is to be made” at the time of the appointment (22 NYCRR 8.1 [emphasis added]).

         We have previously advised that hiring a current law clerk’s spouse as the judge’s secretary is ethically permissible, as the applicant was not related to the judge but only to the judge’s law clerk (see Opinion 15-132). We said we could “see no appearance of impropriety where, as here, the inquiring judge knows and trusts his/her law clerk’s spouse and has determined that he/she is ‘abundantly qualified and competent’ for a secretarial position in chambers” (id.).

         Here, too, a judge’s fifth-degree relative is outside the scope of the anti-nepotism rules (see 22 NYCRR 8.1; 100.3[C][3]). In our view, this distant level of consanguinity does not implicate the nepotism considerations that are at the heart of the Rules. Accordingly, the judge may hire this applicant as their secretary, notwithstanding their familial relationship, provided the appointment is based on merit. If, as the inquiry suggests, the judge has determined this applicant is highly qualified and is the best suited for the position, we see no ethical objection to the appointment.