Opinion 92-23

March 16, 1992

Please Note: Opinion 12-154 has abolished the requirement that a judge must disclose and/or recuse whenever a relative of his/her co-judge appears.  Please review Opinion 12-154 for more information.

Digest:         A part-time judge, in a court with two part-time judges, may preside over a case where one attorney is the brother of the other judge, but must disclose this fact and disqualify himself or herself if any of the parties object.

Rule:            22 NYCRR 100.3(c)(1)

Opinion:

         A part-time judge, in a court with two part-time judges, asks whether the brother of the other judge may appear as an attorney in the inquiring judge's court.

         This Committee previously has ruled that an appearance as attorney by the spouse or the children of the other judge is permissible as long as the judge discloses the relationship and disqualifies himself or herself if any of the parties object. [Opinions 88-68, Vol. 11, 89-100, Vol. IV, and 89-105, Vol. IV]. Similarly, a part-time judge may preside over cases where the litigants are represented by the brother of the other judge, subject to disqualification as stated below.

         However, as with all cases, the judge must be cognizant of section 100.3(c)(1) of the Rules of the Chief Administrator, which states that “a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned.” In the present situation, there is no prohibition as long as the judge discloses the relationship and disqualifies himself or herself if there are any objections, this being a court with only two judges.