Opinion 90-33

March 1, 1990

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

Digest:         A judge, whose law clerk’s sister is an attorney, need not recuse himself in cases in which the attorney-sister appears, but should disclose the relationship to all parties and their attorneys and obtain their consent as to his continued participation, and must completely insulate the law clerk from participation in the case.

Rules:          22 NYCRR §§ 100.3 (c) and (d)

Opinion:

         A full-time judge asks whether he must recuse himself in any case where his law clerk’s sister, who is a practicing attorney, appears before him, or whether he may simply isolate his law clerk from participating in such cases.

         The judge need not disqualify himself from any matter based solely on his law clerk’s relationship to an attorney appearing before him (see Committee Opinion 88-140, Vol. III, and Opinion # 548 of the Committee on Professional Ethics of the New York State Bar Association). As long as the judge is satisfied that he can impartially preside over cases in which his law clerk’s sister appears, he need not disqualify himself.

         However, when the law clerk’s sister appears as attorney in a matter, the judge should reveal the relationship to all parties and obtain their consent to his continued participation in the case (see 22 NYCRR 100.3 (d); Opinion 88-140, supra). He should not preside if a party does not consent. Further, if the judge presides over the case, he must completely insulate the law clerk from any participation in the case.