Opinion 89-100

October 24, 1989

Please Note: Opinion 12-154 has abolished the requirement that a judge must disclose and/or recuse whenever a relative of his/her co-judge appears.  Please review Opinion 12-154 for more information.

Digest:         A judge is not disqualified where a son and daughter-in-law of another judge in that court appear as counsel before the judge, unless the judge feels that he or she will not be impartial, but a town justice of a two-justice court should make disclosure to the parties.

Rules:          22 NYCRR 100.3(c).

Opinion:

         A town justice inquires whether the son and daughter-in-law of his fellow justice, both lawyers, may practice in the town justice’s court before the town justice who is not their parent.

         22 NYCRR § 100.3(c)(1)(iv)(b) provides:

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.

         A judge is not required, according to the Rules of the Chief Administrator of the Courts, to disqualify himself or herself from hearing matters solely because a son or daughter-in-law of another judge is serving as an attorney (see Opn. 88-68). If however, the judge has any reason to doubt his or her own impartiality, then the judge should disqualify himself or herself. Further, in view of the fact that this is a two-justice town court, if the parties are not aware that one of the attorneys is the son or daughter-in-law of the other justice, the trial justice should disclose the relationship, and should disqualify himself or herself if any party objects to the justice’s presiding over the case.