Joint Opinion 97-130/97-147
December 11, 1997
NOTE: This opinion has been overruled. See Opinion 15-164 (“Opinion 97-130/97-147, which requires a judge to disclose his/her child’s public sector employment and obtain the parties’ consent to preside, based solely on the agency’s relatively small size, it is inconsistent with the Committee’s many subsequent opinions. The Committee believes the current rule provides ample protections when a judge’s child’s public sector employer appears before the judge, regardless of the size of the office. Accordingly, Opinion 97-130/97-147 is overruled.”)
Digest: A judge whose child is an attorney in a small public law office must disclose the relationship and obtain the consent of the parties in all matters in which the office appears before the judge. Regardless of the size of the office, the child may not appear before the judge and the judge must recuse if the child had any involvement in the case.
Rule: 22 NYCRR 100.2(B), 100.2(C), 100.3(E)(1)(d)(iii); Opinions: 96-42 (Vol. XIV), 90-91 (Vol. VI), 90-44 (Vol. V), 90-5 (Vol. V); 89-127 (Vol. IV).
Opinion:
Two judges in the same county have separately inquired of the Committee concerning a similar situation. The county has a part-time District Attorney and two part-time assistant district attorneys; a part-time Public Defender with one part-time assistant, and a part-time County Attorney and one part-time assistant.
In inquiry 97-147 a part-time Town Judge informs the Committee that the judge's son has just taken a position as one of two part-time assistants. Although it is understood that the judge's "son will never handle cases in front of my court or appear therein" the judge seeks advice as to avoiding "the appearances of any conflict of interest or impropriety." In inquiry 97-130, the inquirer is a County Court judge who also sits as judge of the Surrogate's and Family Courts as well as an Acting Supreme Court Justice. The judge's son is also a lawyer. The judge poses the following questions:
Therefore, if my son (a lawyer) serves in the capacity of either an assistant District Attorney; assistant Public Defender; assistant County Attorney or the County Attorney, does this disqualify me from presiding over all criminal, family or civil cases (depending on in which office he worked) in _____ County, even though he would not appear before me?
Furthermore, if I was not disqualified on other than the cases in which he appeared, does "appeared" mean that he must have had no involvement whatsoever, for example, preliminary hearings, screening of cases, etc., with a matter presented by another member of the particular office?
The Committee has previously addressed similar inquiries. See e.g., Opinions 96-42 (Vol. XIV), 90-91 (Vol. VI), 90-44 (Vol. V) 90-5 (Vol. V), 89-127 (Vol. IV). The thrust of our prior determinations is that there is no per se disqualification arising solely from the position held by a judge's child. That is, a judge is not automatically obligated to recuse in every case where the office (e.g., District Attorney, County Attorney, Public Defender) is the attorney of record in the proceeding and the child is employed as an attorney in that office. Of course, the child may not appear before the judge as the attorney in the matter. However, if the child had any involvement whatsoever in the matter that is now before the judge there must also be recusal. 22 NYCRR 100.3(1). This involvement would include the "screening of cases" specifically mentioned in inquiry 97-130.
In those instances where there has been no involvement by the child in the case before the judge, the judge may preside, but there must be disclosure of the relationship and consent by the parties. While disclosure in every case that appears on a judge's docket may not be required in a large, metropolitan county with a heavy case load and perhaps 50 or more judges handling that caseload, and consistently large public law office staffs assistant to that court, (see e.g., Opinion 96-42 [Vol. XIV]), it is the view of the Committee, given the county in question, that disclosure and consent are warranted under the circumstances presented in both of the inquiries before us. What is at issue is the public perception of a judge advancing the interests of a family member, the concern being that the child has an interest that could be substantially affected by the proceeding before the parent-judge. 22 NYCRR 100.2(B); 100.2(C), 100.3(E)(1)(d)(iii). Such concerns are significantly greater where there are merely three or fewer attorneys available for representation of a public law office than where the child is just one of scores or even hundreds of attorneys who might be handling matters in the parent's court. In the latter situation, it is unlikely that the child could be perceived as having an interest in a matter that could be substantially affected by the proceeding. Here, however, the greater possibility of a public perception of favoritism and of affecting the interest of the child warrants a requirement of disclosure and consent.