Opinion 22-130

October 27, 2022

Digest: (1) Where a judge’s non-attorney child is employed as an assistant/“runner” with a law firm, the judge is disqualified, subject to remittal, whenever an attorney from the law firm appears in the judge’s court. This obligation continues throughout the child’s employment with the law firm. (2) The judge may not appoint attorneys from the law firm to fiduciary positions during the relative’s employment with the law firm.

Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 22-78; 21-22(A); 19-11; 14-155; 11-43; 99-87; 87-07.

Opinion:

         The inquiring judge’s non-attorney child is employed as an assistant/“runner” for a local law firm, where the child “handles some legal research, files documents at the county clerk’s office, and performs other ministerial assignments” in two practice areas. Some attorneys in the firm are on the Part 36 fiduciary list, although the judge’s relative does not work in those practice areas. The judge asks if it is permissible to preside in matters where the firm’s attorneys appear and/or to appoint them to fiduciary positions.

         A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Therefore, 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]) and must disqualify in any proceeding in which “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]).

Disqualification Obligations

         We have previously considered a judge’s disqualification obligations in matters involving a law firm which employs the judge’s non-attorney first-degree relative.¹ In Opinion 99-87, we said a judge should not preside in cases involving members of a law firm that employs the judge’s spouse in a paralegal/clerical position. We explained that “the relationship of judge and spouse and spouse and employer create a reasonable basis for a questioning of impartiality in cases in which the law firm appears” (Opinion 99-87). Thus, we concluded that “the judge should disclose the nature and extent of the relationship to the parties and disqualify him or herself,” subject to remittal, when members of the law firm appear before the judge (id.).

         Similarly, in Opinion 14-155, we advised that a judge is disqualified, subject to remittal, when the judge’s non-attorney spouse accepted “administrative/clerical” employment with a local attorney who appeared “quite frequently” before the judge. We reasoned that the judge’s impartiality could reasonably be questioned when the attorney appeared, as the judge’s “spouse would have an economic interest that might be substantially affected by the proceeding” (see Opinion 14-155).

         The same principles apply here where the judge’s adult child, a first-degree relative, is employed in a non-attorney position with a private law firm that appears before the judge. Therefore, we conclude that when that law firm’s attorneys appear before the judge, disqualification is required (see Opinions 14-155; 99-87). However, the disqualification is subject to remittal, should the parties and their counsel affirmatively consent to the judge presiding after full disclosure on the record of the basis for disqualification (see id.; see also 22 NYCRR 100.3[F]; Opinion 21-22[A] [overview of remittal process]). If the parties remit the disqualification, the judge may preside, provided the judge can be fair and impartial.

         The judge’s disqualification obligations end when the relative’s employment terminates (cf. Opinion 22-78 [where the judge’s grandchild’s undergraduate internship involves only clerical duties, judge has no obligation to disclose or disqualify once the internship ends]).

Part 36 Fiduciary Appointments

         We previously advised that a Surrogate should not continue to appoint the partners of a law firm to serve as fiduciaries when the law firm recently hired the Surrogate’s child as an associate (see Opinion 87-07). We said that doing so “lends itself to the appearance of impropriety” (see id.). Using a similar rationale, we also advised that a Surrogate whose spouse is a partner in a law firm that frequently appears in the Surrogate’s Court may not appoint partners or associates from that firm to serve as fiduciaries, except in limited circumstances, none of which are relevant here (see Opinion 11-43). As we explained:

And, the fact that the partners or associates would be permitted, as a matter of firm policy, to keep any fees earned and not share them with the firm does not warrant a different result. Even if the judge’s spouse does not share the fees generated by the judge’s judicial appointments, the firm as a whole nevertheless benefits.

         Here, although the judge’s first-degree relative is employed by the law firm in a non-attorney position, we nonetheless reach the same conclusion. Accordingly, given that the judge must disqualify in matters where the law firm appears, we conclude that the judge may not appoint attorneys from the law firm to fiduciary positions during the relative’s employment with the law firm (see also Opinion 19-11 [judge who is currently disqualified from matters involving a particular attorney must not appoint that attorney to fiduciary or counsel positions]).

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¹For conflicts purposes, relatives within the first degree of relationship include the judge’s spouse, a parent or child of the judge or the judge’s spouse, or the spouse of that parent or child.