Opinion 90-151

October 23, 1990

Digest:         A judge whose son is a police officer must disqualify himself or herself if the son is a participant in a matter before the judge, unless, after disclosing the relationship to the parties, all parties consent to the judge’s continued participation.

Rules:          22 NYCRR §§100.3(c)(1)(iv); 100.3(d)

Opinion:

         A part-time judge, whose son is a part-time patrol officer with the local police department and a full-time deputy with the sheriff’s department, asks about the propriety of hearing matters in which the judge’s son is involved.

         Sections 100.3(c)(1)(iv)(a) and (c) of the Rules of the Chief Administrator of the Courts provide as follows:

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 a party to the proceedings ...

is to the judge’s knowledge likely to be a material witness in the proceedings: ...

         Further, section 100.3(d) provides that a judge disqualified pursuant to the above provision, “instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification, and may preside if all parties, independent of the judge’s participation, agree, in writing or on the record, that the judge’s relationship is immaterial.”

         Accordingly, the judge must disqualify himself or herself if the judge’s son is in any way involved in the case, unless the judge discloses the son’s involvement and the parties consent to the judge’s continued participation.