Opinion 92-66

May 7, 1992

Please Note: Opinion 13-108 fn 4 states, in part: “Because the Committee here requires disqualification in all cases where probation officers under the direct supervision of the inquiring judge’s spouse prepare pre-sentence reports, Opinion 92-66 is overruled to the extent that it suggests that disqualification is never required merely because a relative who is a probation officer ‘has conducted the pre-sentence investigation [or] signed the pre-sentence report.’”  

Digest:         A judge may preside where a probation officer in the case is related to the judge, unless the probation officer is likely to be a material witness. A judge may preside in a case where a lawyer is the spouse of the judge's first cousin once removed.

Rules:          22 NYCRR §§100.3(c)(1)(i); 100.3(c)(1)(iv); and 100.3(d).

Opinion:

         A part-time judge who is related to a probation officer within the fifth degree of consanguinity asks whether the relationship requires disqualification in a case where the probation officer has conducted the pre-sentence investigation, signed the pre-sentence report or executed and filed a petition for violation of probation. The judge also asks whether the spouse of the judge's first cousin once removed may practice as an attorney before the court in which the judge sits.

         Disqualification of any judge is governed by section 100.3(c) of the Rules of the Chief Administrator. Section 100.3(c)(1)(iv) provides that a judge should disqualify himself or herself where:

the judge or the judge's spouse, or a person within the sixth degree of relationship to either of them, or the spouse of such a person:

(a) is a party to the proceeding, or an officer, director, or trustee of a party;

(b) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(c) is to the judge's knowledge likely to be a material witness in the proceeding.

         This Rule does not require a judge's disqualification where the judge's relative is involved in a case in the capacity of a probation officer unless the relative is likely to be a material witness in the proceeding before the judge, as would be the case in a probation violation hearing. While recusal is not otherwise required merely by virtue of the relationship, this presumes that the judge feels that he or she can be wholly impartial in evaluating any reports or actions of the relative-probation officer which impact on the defendant who is before the judge. If the judge has any doubts about his or her ability to be impartial or to objectively decide disputed evidentiary matters that may involve reference to the probation officer's work, then the judge should recuse himself or herself.

         Section 100.3(c)(1)(v) provides that disqualification is required where "a person within the fourth degree of relationship" to either the judge or the judge's spouse "or the spouse of such person, is acting as a lawyer in the proceeding." As the lawyer is the spouse of the judge's first cousin once removed, the lawyer is not within the fourth degree of relationship to the judge, and accordingly, the judge need not disqualify himself or herself.