Opinion 94-01

March 10, 1994

Digest:         (1) A judge must disqualify himself or herself in a proceeding where the judge's cousin-in-law appears as an attorney before the judge, unless after disclosure, and in accordance with the procedures for remittal of disqualification, the parties agree that the judge may preside over the matter. (2) The judge may preside in proceedings where associates of the cousin-in-law appear as attorney before the judge.

Rules:          22 NYCRR §100.3 (c)(1)(iii) and (v); 100.3(d). Canon 3(C)(1)(d)(ii); Canon 3 (D), Advisory Committee on Judicial Ethics Opinions 90-94; 90-127, Vol. VI; 91-125, Vol. VIII.

Opinion:

         A judge asks whether it is permissible to preside over a matter in which the judge's cousin-in-law appears as an attorney in the proceeding. Additionally, the judge asks whether it is permissible to preside over a matter in which associates of the judge's cousin-in-law appear as an attorney in the proceeding. The judge notes that the judge's cousin is employed by the law firm as a clerk.

         Section 100.3 (c)(1)(v) of the Rules of the Chief Administrator provide as follow:

(1) 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. (See also Code of Judicial Conduct, Canon 3[C][1][d][ii] ).

         In Opinion 90-94, Vol. VI this Committee stated that this provision requires the judge's disqualification where the judge's first cousin's spouse appears as attorney

before the judge.

         Section 100.3(d) of the Rules of the Chief Administrator, provide that:

A judge disqualified by the terms of subparagraph (c)(i) . . . (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 may not preside over the matter unless after disclosure of the relationships and, in accordance with the procedure for remittal of disqualification, the parties consent to the judge's participation, either in writing or in open court upon the record (See also, Advisory Committee on Judicial Ethics, Opinion 90-127, Vol. VI).

         The judge may sit in cases where associates of the cousin-in-law appear, provided the judge feels that he or she can be impartial. There is no affirmative duty to disclose the relationship when associates appear.