Opinion 92-60

May 7, 1992

Digest:         A judge should disqualify himself or herself from a case where an attorney scheduled to appear before the judge for trial presently is representing the judge's son in another court, unless, after disclosure, all parties consent to the judge's presiding.

Rules:          22 NYCRR §§100.3(c); 100.2.

Opinion:

         A part-time judge inquires whether recusal is required where the judge's son presently is being represented in another court on a traffic violation by an attorney who is scheduled to represent another defendant in a trial before the judge.

         Section 100.2 of the Rules of the Chief Administrator require that a judge avoid not only impropriety, but even the appearance of impropriety, and impartially and diligently perform his or her judicial duties. Section 100.3(c) of the Rules states that "a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned." Section 100.2 states, that ''a judge shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."

         Under the circumstances here, the judge should recuse himself or herself. However, if the judge feels that he or she can be impartial, the judge may disclose the relationship to the parties, accompanied by an offer of recusal, and may preside if all parties consent in writing or on the record.