Opinion 91-125

October 31, 1991

NOTE: This Opinion was reaffirmed by Opinion 09-04 (which addresses a judge's obligations when the temporary employer of a judge's first-degree relative [e.g., summer internship] appears before the judge).

Digest:         A judge should disqualify herself or himself in all matters where the judge’s daughter-in-law is employed by a law firm representing one of the parties, unless, after disclosure of such fact, on the record, the parties waive such disqualification.

Rule:            22 NYCRR §100.3(C)(1)(v), 22 NYCRR §100.3l(d), Canon 3(C)(1)(d)(ii);

Canon 3(D), Advisory Committee on Judicial Ethics Opinions 90-94; 90-127, Vol. VI.

Opinion:

         A full-time judge’s daughter-in-law, who is a law school graduate not yet admitted to practice, is employed by a large law firm, which has an office in the judicial district where the judge presides, and which represents litigants in cases assigned to the judge. The judge asks if disqualification is required when one of the parties before the court is represented by the law firm that employs the judge’s daughter-in-law, if she is not involved in the matter being litigated.

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

A judge shall disqualify himself of herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where: . . . (v) 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. (See also, Code of Judicial Conduct, Canon 3[C][1][d][ii]).

         However, the mandated judicial disqualification may be waived by the parties, for section 100.3(d) provides:

A judge disqualified by the terms of subparagraph (c)(1)... (v)..., 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,... 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.

         On the facts presented, the judge ethically is disqualified in matters where the law firm employing the judge’s daughter-in-law represents a party, but the judge may participate in the proceeding if the parties properly waive such disqualification         (see also, Advisory Committee on Judicial Ethics, Opinions 90-94; 90-127, Vol. VI).