Opinion 95-132

December 14, 1995

Digest:         The judges of a Family Court need not disqualify themselves sua sponte or on motion based on an attorney's relationship to the Director of the Department of Probation.

Rule:            22 NYCRR 100.3(c)

Opinion:

         The clerk of a Family Court, on behalf of the judges of that court, makes inquiry concerning the propriety of such judges presiding in “custody/visitation” cases where one of the litigants is represented by the son of the Director of the County Probation Department. The general procedure in the Family Court in question is for the judges in “custody/visitations”. Probation officers draft reports to the judges, which contain recommendations “as to the outcome of the case”.

         There is no ethical prohibition barring a Family Court judge from presiding in a case where the attorney for one of the parties is a relative of the Director of the County Probation Department. That is, as posed, there is no disqualifying relationship that would preclude the judge from presiding. Thus, Committee sees no “appearance of impropriety” in such a situation (see 22 NYCRR 100.3[C]). This, of course, is subject to the judge's own confidence in his/her ability to be impartial.

         The Committee is of the view that the presiding judge, if aware of the familial relationship between the attorney and the Director of the County Probation Department, should advise counsel of the relationship. The court should make whatever disposition it concludes is most appropriate, including the possible ordering that the Director of the Probation Department not participate in the preparation of the “homestudy” to be conducted, or some other appropriate measure. Also, the Committee sees no impropriety in the appointment of this attorney to serve as a law guardian (see Family Court Act 243; 22 NYCRR 36.1).