Opinion 89-127

December 5, 1989

Digest:         A judge may preside in criminal matters prosecuted by the district attorney’s office, although the judge’s son serves in that office as a part-time assistant district attorney, provided that the judge’s son does not personally appear; affirmative disclosure not required.

Rules:          22 NYCRR 100.2(a) ; 100.3(c)(1) ; 100.3(d) .

Opinion:

         A judge whose son is a part-time assistant district attorney (one of ten) in the county where the judge sits, seeks an opinion as to whether the judge may preside over criminal matters prosecuted by the district attorney’s office.

         Unquestionably, the judge is disqualified from presiding in any case in which the judge’s son acts as a lawyer (22 NYCRR 100.3(3)(1)(v). However, no ethical considerations bar the judge from presiding over criminal cases where the judge’s son is not handling the case.

         Section 100.3(c)(1) of the Rules of the Chief Administrator 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:

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(b) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding.

(1) (v) the judge or the judge’s spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person is acting as a lawyer in the proceeding.

         In Joint Opinion 88-101-88-102, the then non-statutory committee found that where the spouse of a judge presiding over a criminal case was an assistant district attorney, the judge must fully disclose on the record the relationship of his or her spouse with the district attorney’s office, and, if requested by either party to disqualify himself or herself, should do so.

         That Joint Opinion is limited only to the unique spousal relationship on the grounds that an “assistant district attorney who is the spouse of the justice may be seen to have an interest that could be substantially affected by the outcome of the proceeding over which the justice presides.” This Committee has no occasion to reconsider that ruling at this time.

         In Opinion 89-112, this Committee recently concluded that a judge need not recuse himself or herself from presiding over a criminal case merely because the judge’s cousin is an assistant district attorney, where the district attorney’s office is represented in the case by a person other than the cousin.

         Similarly, in the instant matter, a judge’s son, like a judge’s cousin, does not appear to have a significant interest in the outcome of a case handled by the district attorney’s office, so as to prohibit a judge from presiding over that case. Accordingly, the judge is not disqualified, nor need the judge affirmatively disclose the fact of the son’s relationship with the district attorney’s office, in cases prosecuted by other members of the district attorney’s office.