Opinion 24-179
December 12, 2024
Digest: (1) Where a court attorney
is related within the fourth degree to the elected District Attorney, the court
attorney must be insulated from all criminal matters.
(2) Where a court attorney’s relative within the fourth degree is an attorney
in private practice, the court attorney must be insulated from all matters
involving the relative’s law firm.
Rules: 22 NYCRR 100.2; 100.2(A)-(B); 100.3(E)(1); Opinions 23-117; 22-16; 21-39; 20-26; 17-120; 14-174; 14-10; 13-104; 13-26; 90-130; People v Moreno, 70 NY2d 403 (1987).
Opinion:
A judge asks about two potential conflicts based on a court attorney’s familial relationships. Specifically, the court attorney is related by blood or marriage within the fourth degree of relationship to two practicing attorneys.[1] In one instance, the court attorney’s relative is the elected District Attorney, and the judge asks if the court attorney may “write and research motions in criminal cases.” In the other instance, the court attorney’s relative is an attorney in private practice, working for a law firm that regularly appears before the court in civil matters. The inquiring judge notes that in his/her court the court attorneys work for a pool of judges to “write and research motions” for the court’s civil or criminal cases.
A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must not allow family, social, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). However, where disqualification is not required under objective standards, a judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).
Where a member of the judge’s staff has a conflict, a judge ordinarily need not disqualify; rather, it is sufficient to insulate the staff member and disclose the situation (see e.g. Opinions 22-16; 13-26). As we explained in Opinion 23-117 (citations omitted):
A judge’s impartiality cannot “reasonably be questioned” merely because an attorney appearing before the judge is the spouse or other family member within the fourth degree of relationship of the law clerk’s relative, or a colleague of the law clerk’s relative. However, the judge must insulate the law clerk to the extent required by prior opinions and make appropriate disclosures.
Where the law clerk’s attorney/relative is in private practice, the judge’s insulation and disclosure obligation extends to the relative’s partners and associates. Conversely, if the attorney/relative appears on behalf of a public law office, the judge’s obligation is ordinarily “limited to only those cases where the attorney actually appears or has had some involvement” in the case, whether directly or as a supervisor.
Here, with respect to the attorney/relative who is in private practice with a law firm, the court attorney’s relationship with the practitioner must be disclosed and the court attorney must be insulated from all cases involving the practitioner’s law firm (see e.g. Opinions 21-39; 14-174; 13-104).
With respect to the attorney/relative who is the elected District Attorney, the judge’s obligation is similarly very broad because “the” District Attorney is the attorney of record and/or the official in charge under whose authority all criminal proceedings in a particular locality are conducted (see e.g. Opinion 14-10). Therefore, the judge must disclose and insulate the court attorney from all criminal proceedings brought by or in the name of the District Attorney (cf. Opinion 23-117 [“[T]he judge must insulate the law clerk from all cases involving the PD’s office once the law clerk’s spouse becomes ‘the’ PD.”]).
“Insulation precludes the law clerk from participating in any way in the proceedings, including conferencing cases, performing substantive legal research, and drafting decisions” (see Opinion 23-117; see also Opinions 17-120 [“[Insulated] clerk must not attempt to access these case files except in the same time, place and manner as other similarly situated members of the public who are not court employees.”]; 90-130 [“[Insulated clerk] should be instructed to avoid any contact with the case, its files or documents, and should not appear in the courtroom while the clerk’s attorney-spouse appears.”]).
Accordingly, we conclude that a pool court attorney may not write and research motions in criminal matters, where the court attorney is related by blood or marriage within the fourth degree of relationship to the elected District Attorney. Likewise, a pool court attorney may not write and research motions in matters involving an attorney/relative’s law firm, where the court attorney is related by blood or marriage within the fourth degree of relationship to an attorney in private practice.
This insulation may be remitted if the judge makes full disclosure of the basis for the court attorney’s insulation on the record, the parties and their counsel affirmatively consent to remit without participation by the court, and the judge is satisfied the court attorney will be fair and impartial (see Opinion 20-26).
[1] Relatives within the fourth degree of relationship by blood or marriage include first cousins, nephews, nieces, aunts, uncles, grandparents, grandchildren, siblings, parents, and children of the court attorney or the court attorney’s spouse, or the spouse of such person.