Opinion 23-76
June 15, 2023
Digest: A judge need not insulate their law clerk from a custody proceeding merely because their law clerk’s third-degree relative has a child in common with one of the parties, where the law clerk has no familial connection to any of the parties, witnesses, or subject child in the present proceeding. If the judge chooses to make a disclosure, the judge retains full discretion to preside and permit the law clerk to participate in the matter, whether or not the parties object.
Rules: 22 NYCRR 100.0(C); 100.0(I); 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(d)(i), (iii); Opinions 21-32; 18-87; 17-118; 13-114; 11-49; 09-189.
Opinion:
The inquiring judge is presiding in a matter between two divorced parents, with the assistance of the judge’s law clerk. The matter appears to be contentious, with petitions and cross-petitions alleging family offenses and seeking enforcement of a custody order. Although the law clerk has “no relationship to the parties, witnesses or subject child in this matter,” the law clerk recently learned that their third-degree relative has a child in common with one of the parents involved in the custody proceeding.[1] Neither the law clerk’s third-degree relative nor that relative’s child are involved in any way in the matter before the judge. The judge plans to make a disclosure to the parties, but asks whether it is ethically permissible to continue to preside in the matter and to permit the law clerk to work on it.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes 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 the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must disqualify in a proceeding in which the judge’s impartiality “might reasonably questioned” (see 22 NYCRR 100.3[E][1]), including where the judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such a person, “is a party to the proceeding” (22 NYCRR 100.3[E][1][d][i]) or “has an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][1][d][iii]). The degree of relationship is calculated according to the civil law system (see 22 NYCRR 100.0[C]).
Where a familial relationship exists, the degree of relationship is ascertained by counting the degrees up to and down from a common ancestor. In this scenario, a party to the proceeding has a child in common with the law clerk’s third-degree relative, but (a) is not married to the law clerk’s relative and (b) does not share a common ancestor with the law clerk or the law clerk’s spouse. Accordingly, that party is not related to the law clerk by blood or marriage (cf. Opinions 21-32 [judge’s spouse’s deceased former spouse’s child, where judge’s spouse never adopted the child and they “treat each other as acquaintances rather than family”]; 18-87 [half-sibling of judge’s great-niece/great-nephew, where judge’s niece/nephew “never married, and has no relationship with, the half-sibling’s parent”]; 13-114 [the niece/nephew by marriage of the judge’s first cousin by marriage]; 11-49 [sibling of the judge’s child’s spouse]; 09-189 [niece/nephew of judge’s spouse’s aunt/uncle]).[2]
We thus conclude the connection here does not require disclosure or insulation of the law clerk, and the judge’s impartiality clearly cannot “reasonably be questioned” on this basis (22 NYCRR 100.3[E][1]). If the judge chooses to make a disclosure, the judge retains full discretion to preside and permit the law clerk to participate in the matter, whether or not the parties object.
[1] That is, Parent A and Parent B have Child C together, who is a subject of the present proceedings. Parent A also has a Child Z with the law clerk’s third-degree relative. Although Child Z is the law clerk’s fourth-degree relative, the law clerk has no outside relationship with Parent A under the facts presented and Child Z “is not subject to these proceedings.” We note that third-degree relatives include a niece, nephew, aunt or uncle; fourth-degree relatives in this context include a great-niece, great-nephew or first cousin.
[2] While “the rules and our prior opinions recognize that a member of a judge’s family includes a ‘person with whom the judge maintains a close familial relationship’” (Opinion 17-118, fn 1, quoting 22 NYCRR 100.0[I]), nothing here suggests any such connection between the law clerk and the party.