Opinion 87-08
Topic: Disqualification; family relationship; Surrogate’s son in law firm.
Digest: Surrogate should disqualify himself from presiding over matter in which law firm appears with which Surrogate’s son is associated.
Rules: Judiciary Law §§ 472, 471; Canons 3 (C) (1) (d) (iii) and 3 (D); 22 NYCRR §§ 100.3 (c) (1) (iv) (b) and 100.3.
Opinion:
A Surrogate requests an opinion as to whether or not such Surrogate may preside over matters involving the law firm which employs the Surrogate’s son. For the reasons hereinafter stated, the Committee advises that the Surrogate not handle any such matter.
Judiciary Law § 472, entitled “Attorney who is Surrogate’s parent or child prohibited from practicing before him,”provides that “A surrogate’s parent or child shall not practice or be employed as attorney or counsel, in any case, in which his partner or clerk is prohibited by law from so practicing, or being employed.” This language is admittedly ambiguous and must be read with Judiciary Law § 471 entitled “Attorney who is judge’s partner or clerk prohibited from practicing before him or in his court” provides that “The law partner or clerk of a judge shall not practice before him, as attorney or counselor in any cause, or be employed in any cause which originated before him. A law partner of, or person connected in law business with a judge, shall not practice or act as an attorney or counselor, in a court, of which the judge is, or is entitled to act as a member, or in a cause originating in that court; . . .”.
There is a suggestion that Part 36 of the Rules of the Chief Judge entitled “Appointment of Fiduciaries” tends to allow judges not to disqualify themselves when professional associates of judge’s relatives appear before them. While sympathetic with the direction of such argument, we dismiss it in the context of the present submission. Specifically, Section 36.1 in pertinent part provides “(b) no person shall be appointed who is a relative of, or related by marriage to, a judge of the Unified Court System of the State of New York. This provision shall apply only to the known relatives of the judges and not to the professional associates of those relatives” (but see, Matter of Kane, 50 N.Y. 2d 360,363). The Committee, in a previous opinion, has advised that a Surrogate should not appoint as guardians ad litem pursuant to section 36.1 partners of a law firm that employs the Surrogate’s own son as an associate, because that practice would violate Rule 100.2 of the Chief Administrator’s Rules of Judicial Conduct (appearance of impropriety). (See Opinion 87-07 [Vol.1]). In terms of the appearance of impropriety and the likelihood of partiality, it is arguable the appointment of a fiduciary does not rise to the level achieved when a judge presides over a matter wherein a relative’s professional associate represents a litigant.
In any event, the question presented is addressed by the following provisions:
Canon 3 (C) (1) (d) (iii)
which provides that a judge “should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including, but not limited to instances including, but not limited to instances where: . . . he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such person; . . . is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; . . .”.
22 NYCRR § 100.3 (c) (1) (iv) (b)
which provides that “A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where: . . . the judge or the judge’s spouse, or a person within the sixth degree of relationship to either of them, or the spouse of such a person; . . . is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; . . . ”.
To suggest that an attorney who is the son of a Surrogate does not have “an interest that could be substantially affected by the outcome of the proceeding” when his law firm appears before the Surrogate may be unrealistic.
However, both the above-cited sections contain provisions whereby such disqualification can be overcome or remitted upon disclosure of the basis of the disqualification and the written consent of the parties involved (Canon 3 (D); 22 NYCRR § 100.3 (d)).
Remittal in the normal civil or criminal matter is easily effected since generally all the parties are before the court and are represented by counsel. As such, the notice and written consent requirements of Canon 3 (D) and 22 NYCRR § 100.3 (d) pose no special automatic problem. Such is not the case in the vast majority of matters processed in the Surrogate’s Court which are non-adversarial. In the first instance, difficulty arises as to which individuals in a Surrogate’s proceeding are entitled to notice under the remittal sections.
A problem more likely to occur is presented in the frequent Surrogate Court proceeding which is not contested. Specifically, does a conflict arise when the Surrogate is called upon to set a fee for services rendered by a law firm which employs his or her son? Generally the sole submission on such a fee request comes from counsel. As such, counsel is placed in the position of being a party. The appearance of partiality in favor of counsel over their own clients created thereby is most undesirable and must be avoided.
This Committee concludes that there is too much risk that a Surrogate’s impartiality “might reasonably be questioned” in cases involving a law firm in which his son is a partner or associate so as to warrant his disqualification (Canon 3 (C) (1); 22 NYCRR § 100.3 (c) (1)). Such matters should be heard by another judge so designated to preside (see, Matter of Kull, 32 A.D. 2d 977).
This opinion is advisory only and does not bind either the Office of Court Administration or the Commission on Judicial Conduct.