Opinion 90-94

September 18, 1990

Digest:         A part-time judge must disqualify himself or herself in a proceeding where the judge’s cousin in-law appears as an attorney before that judge, unless, after disclosure, the parties agree that the judge may preside.

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

Opinion:

         A part-time judge asks whether the judge must disqualify himself in a matter in which the judge’s first cousin’s spouse appears as an attorney for one of the parties.

         Section 100.3(c)(1)(v) provides in relevant part:

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 fourth degree of relationship to either of them, or the spouse of such person, is acting as a lawyer in the proceeding.

         This provision requires the judge’s recusal where the judge’s first cousin’s spouse appears as attorney before the judge. However, pursuant to section 100.3(6), a judge disqualified by the terms of this provision, may disclose on the record the basis of the disqualification. If the parties, independent of the judge’s participation, agree, either in writing or in open court upon the record, that the judge’ relationship is immaterial, the judge may participate in the proceeding.