Opinion 90-05

March 1, 1990

Digest:         A judge is not disqualified from presiding over criminal cases because his son is an assistant district attorney in the county where he sits, on disclosure and consent.

Rules:          22 NYCRR §§ 100.2(b),and 100.3 ( c)(1)(v).

Opinion:

         A judge, whose son is one of three assistant district attorneys in the judge’s county, inquires whether this disqualifies him from presiding over all criminal cases in that county, even when his son does not appear, or whether he may sit if he discloses that his son does not appear, or whether he may sit if he discloses that his son is an assistant district attorney and all parties agree on the record to his participation.

         Section 100.2 (b) of the Rules of the Chief Administrator states that “no judge shall allow his or her family, social, or other relationships to influence his or her judicial conduct or judgment.” In Opinion 89-127, we held that a judge may preside over criminal cases presented by the district attorney’s office, even though the judge’s son serves as one of the ten assistants in that office, provided that the son does not personally appear. Here, under all the circumstances described by the judge, i.e., where the district attorney’s office has three assistant district attorneys, and where the judge discloses the fact of his son’s service with the district attorney’s office in all cases prosecuted by other members of that office, and where all parties agree on the record to his participation, the judge may preside, provided, of course, that he concludes that his son’s serving as an assistant district attorney will not prejudice or influence him.