Opinion 24-43
March 14, 2024
Digest: Where a judge’s cousin is an employee of a residential holding company and one of several non-lawyers who regularly appear as the company’s agent in eviction proceedings, the judge (1) must disqualify in matters involving the judge’s cousin but (2) may preside in eviction proceedings brought by other agents of the residential holding company, provided the judge is satisfied that his/her cousin is not likely to be a material witness and the judge can be fair and impartial.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(d)(i)-(iii); 100.3(E)(1)(e); 100.3(F); Opinions 15-191; 14-147; 06-111.
Opinion:
The inquiring town justice’s fourth-degree relative (a first cousin) is employed by a residential holding company which appears as a petitioner in non-payment and holdover eviction proceedings in various local courts, including the town court. The judge’s cousin is not an officer, director, or principal of the company, but is one of several non-lawyer employees authorized to appear in such eviction proceedings as the company’s agent. The judge’s cousin “no longer appears” in eviction proceedings in the judge’s court. In the company’s most recent eviction petition, brought by another of the company’s agents, the papers submitted included three documents notarized by the judge’s cousin: (i) a verification of the petition by a principal of the company; (ii) the principal’s authorization of any or all of the company’s non-lawyer agents (including the judge’s cousin) to act as the company’s representative in the proceeding; and (iii) a non-party’s affidavit of service. In addition, the preprinted introductory language of the company’s eviction petition names all of the company’s authorized agents, including the judge’s cousin, regardless of which agent is appearing on the matter.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must disqualify him/herself in a proceeding in which “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). For example, disqualification is required when a judge knows a person within the fourth degree of relationship by blood or marriage “is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Disqualification is also required when the judge knows a relative within the sixth-degree (i) is a party to the proceeding; (ii) is an officer, director or trustee of a party; or (iii) has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][d][i]-[iii]). In some instances, the disqualification may be subject to remittal (see 22 NYCRR 100.3[F]).
We have recognized that a relationship within the second degree, such as parent, sibling, child, or spouse, typically denotes “a more intimate and significant family connection” than that of more distant relatives such as aunt, uncle, niece, nephew, or cousin (Opinion 06-111). Thus, we distinguish between a law firm that employs the judge’s sibling (a second-degree relative) and one that employs the judge’s first cousin (a fourth-degree relative).[1] With respect to an attorney sibling, the judge must disqualify when the sibling or another lawyer in the sibling’s law firm appears before the judge (see Opinion 06-111). But with respect to an attorney cousin, we said the judge is disqualified, subject to remittal, in matters where the first cousin appears, but need not disclose or recuse when other attorneys from the same law firm appear (see Opinion 14-147; cf. Opinion 15-191 [no duty to disclose or disqualify when attorney from judge’s nephew’s law firm appears]).
Here, it appears that the judge’s non-lawyer cousin is a mere employee of the residential holding company, rather than an owner/principal, officer, director, or trustee. The judge must disqualify in matters where his/her cousin is personally appearing as the non-lawyer agent of a party to the proceeding (cf. 22 NYCRR 100.3[E][1][d][i]). The judge must also disqualify in matters where his/her cousin “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). But where the holding company is appearing solely by means of its other non-lawyer agents and the judge’s cousin is unlikely to be a material witness in the proceedings, we conclude the judge’s impartiality cannot reasonably be questioned. The fact that the petition may include documents that were notarized by the judge’s cousin, without more, does not mean that the judge’s cousin is “likely to be a material witness” for purposes of Section 100.3(E)(1)(e). Furthermore, there is no affirmative duty to disclose the familial relationship when another agent from the holding company appears.
Accordingly, we conclude that the judge (1) must disqualify in matters involving the judge’s cousin but (2) may preside in eviction proceedings brought by other agents of the residential holding company, provided the judge is satisfied that his/her cousin is not likely to be a material witness and the judge can be fair and impartial.
[1] In this discussion, our reference to “the judge’s sibling” or “the judge’s cousin” is mere convenient shorthand, as it includes a sibling or cousin by marriage.