Opinion 89-105

September 12, 1989

Digest:         A village justice is disqualified from presiding over a traffic violation case where the son of the acting village justice is a defendant, but is not disqualified where the son of the acting village justice is an attorney for a defendant, provided that the justice feels that he or she will be impartial.

Rules:          22 NYCRR 100.3(c), Canon 3(c)

Opinion:

         A village justice asks the Committee whether the justice’s disqualification is required where the son of the acting village justice is to “appear” before the village justice in a traffic violation proceeding. The inquiry does not make it clear whether the son of the acting village justice is to appear as “defendant” or as “attorney” for another defendant. Since the Committee believes this would make a difference, it will respond to the inquiry on both counts.

         1) If the acting village justice’s son appears as a defendant in the traffic violation proceeding, the village justice must recuse himself or herself to avoid the appearance of impropriety.

         2) If the acting village justice’s son appears as an attorney in the traffic violation proceeding representing a defendant, the village justice need not recuse himself or herself, unless the village justice harbors doubts as to his or her ability to be impartial.