Opinion 21-32

March 11, 2021

Digest:         A judge need not disqualify from matters involving an attorney acquaintance, merely because the attorney is the child of the judge’s spouse’s deceased former spouse, where the judge’s spouse and the attorney treat each other as acquaintances rather than family.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(d)(i); 100.3(E)(1)(e); Opinions 17-118; 13-114; 12-102; 11-125; 11-49; 09-189.

Opinion: 

         The inquiring judge married a widow/widower. The judge is aware that one assistant district attorney (ADA), whom the judge has known professionally for over a decade,¹ is an adult child of the judge’s spouse’s deceased former spouse (the decedent). Although the judge’s spouse had a stepparent/stepchild relationship with the decedent’s child during the marriage, the judge’s spouse never adopted the decedent’s child. Since the decedent’s death, the judge’s spouse and the decedent’s child have treated each other as acquaintances rather than family. Thus, the judge and their spouse do not socialize with the decedent’s child, but have seen them only a few times at larger family events involving the decedent’s family.

         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 must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). In addition, a judge is disqualified in situations where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by rule or law (see Judiciary Law § 14). For example, a judge is disqualified if the “judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]).

         Since a stepchild is a first-degree relative by marriage, a judge clearly cannot preside in a case where their stepchild, or the stepchild’s spouse, is a party or is appearing as counsel (see e.g. Opinion 12-102; 22 NYCRR 100.3[E][1][d][i] [party]; 100.3[E][1][3] [counsel]).

         We have previously advised that a judge need not disqualify from matters involving the judge’s son/daughter-in-law’s sibling (see Opinion 11-49), a niece or nephew (by marriage) of the judge’s first cousin (by marriage) (see Opinion 13-114), or the niece/nephew of the judge’s aunt/uncle by marriage (see Opinion 09-189), as these individuals are not related to the judge by blood or marriage. The key question is whether the judge or the judge’s spouse shares a common ancestor with the individual in question (or with that individual’s spouse). Here, too, neither the judge nor the judge’s spouse shares a common ancestor with the ADA. We therefore conclude the ADA is not related to the judge by blood or marriage within the meaning of the Rules Governing Judicial Conduct, and the judge therefore need not disqualify on this basis.

         On occasion, an individual “not related by blood or marriage” to the judge or their spouse nonetheless “maintains a close familial relationship” with the judge sufficient to warrant treating them as a member of the judge’s family (see Opinion 17-118 [requiring disqualification in matters involving “a person [the judge has] treated as a first-degree relative”]). However, that is certainly not the case here on the facts presented; rather, the judge’s spouse and the ADA treat each other as acquaintances.

         The final question is whether the judge has any obligation based on their own social relationship with the ADA. In Opinion 11-125, we identified three broad categories of interpersonal relationships between judges and lawyers who appear before them. It is apparent, on the facts presented, that the relationship between the judge and the ADA is best categorized as that of an “acquaintance,” as they do not socialize privately and “their interactions outside court result from happenstance or some coincidental circumstance” (Opinion 11-125).¹ When an attorney with whom a judge has as an acquaintance-level relationship appears before the judge, neither disqualification nor disclosure is required as long as the judge believes they can be fair and impartial. Rather, the judge has full discretion whether or not to make any disclosure or offer to recuse. Should the judge choose to disclose, the judge also retains full discretion to preside, even if there is an objection.

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¹ The judge is also a former public defender, and recalls they were once opposing counsel in a criminal case.

² The coincidental circumstance here is that the ADA’s deceased parent was once married to the judge’s spouse. We note that a stepfamily unit is a creature of marriage. In some instances, close and lasting interpersonal bonds may arise during the marriage, that are strong enough to survive its end. Here, they did not.