Opinion 90-26

March 1, 1990

Please Note: With respect to the second inquiry, this Opinion has been modified by Opinion 12-143, which advises that an individual subject to the Rules Governing Judicial Conduct may attend criminal proceedings involving his/her 4th degree relative by blood or marriage in any county where such proceedings are pending.

Digest:         A judge may testify, preferably but not necessarily pursuant to a subpoena, as a witness in a trial where the judge’s daughter is a party, and the judge may watch the judge’s daughters, who are litigation attorneys in court, but only in a county other than where the judge sits and only as long as the judge is likely to remain an unknown observer.

Rules:          22 NYCRR § 100.2(c)

Opinion:

         A full-time judge who has two daughters, both of whom are litigation attorneys, asks (1) whether the judge may testify as a fact witness at a trial where one of the parties is the judge’s daughter; and (2) whether, as a spectator the judge may observe the performance of both daughters in the courtroom.

Section 100.2(c) of the Rules of the Chief Administrator of Courts states:

No judge shall lend the prestige of his or her office to advance the private interests of others; nor shall any judge convey or permit others to convey the impression that they are in a special position to influence him or her. No judge shall testify voluntarily as a character witness.

         In Opinion 89-76, this Committee found that a judge is not prohibited from testifying as a witness to facts at a hearing even without a subpoena, but that preferably the judge would appear pursuant to a subpoena. That Opinion applies to the judge’s first inquiry here.

         Section 100.2(c) of the Rules does not prohibit a judge from sitting inconspicuously in the observers area of the courtroom along with other court observers, in order to view the daughter’s performance. The judge, however, should not observe the judge’s daughter in any court located in the judge’s own county, where we must presume it is likely that the judge may be recognized. The judge may observe in courts outside the county where the judge presides, provided that it is unlikely that the judge would be recognized by the sitting judge.