Opinion 90-44

June 7, 1990

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

Digest:         An appellate court justice, whose daughter-in-law is an assistant counsel in a department of the state government, should not participate in appeals of any cases in which she was involved, unless there is disclosure and all parties consent, but recusal and disclosure are not required in matters in which she was not involved.

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

Opinion:

         An appellate court justice, whose daughter-in-law is an assistant counsel for a department of the state government, requests an opinion relating to the propriety of the justice’s participating in hearing appeals where the department is a party.

         The justice’s daughter-in-law supervises several attorneys in the office of counsel to the department. She defends the department in Article 78 proceedings and serves as counsel to a professional practice committee, which makes recommendations to the department concerning findings of fact, conclusions of law and penalties in all professional disciplinary matters.

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

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:

(1)(v) of 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.

         Section 100.3 (d) of the Rules of the Chief Administrator of the Courts provides:

A judge disqualified by the terms of subparagraph ( c)(1)(ii), (iv) or (v) of this section, instead of withdrawing from the proceeding, may disclose on the record the basis of the disqualification. If, based on such disclosure, the parties (who have appeared and not defaulted), by their attorneys, independently of the judge’s participation, all agree that the judge’s relationship is immaterial or that his or her financial interest is insubstantial, the judge no longer is disqualified, and may participate in the proceeding. The agreement shall be in writing, or shall be made orally in open court upon the record.

         Although the justice’s daughter-in-law would not personally appear before the justice in arguing appeals, she may have been involved in the proceeding in her capacity as counsel to the department. If so, she would be “acting as a lawyer in the proceeding”, notwithstanding that she does not actually appear in the justice’s court. The justice’s presiding in such cases would create an appearance of impropriety. In cases in which the daughter-in-law participated in any way, or in which the unit she supervises participated, the justice should invoke disqualification or disclose the relationship and should hear the appeal only if all parties consent. If, however, neither the justice’s daughter-in-law nor any of the attorneys she supervises was involved, directly or indirectly, at any stage in the matter on appeal, the justice may hear the appeal.