Opinion: 98-09

March 12, 1998

NOTE: The Chief Judge’s rules concerning political activities of nonjudicial court employees now appear at 22 NYCRR 50.5.  For guidance on Part 50 (formerly Part 25), court personnel may consult the Office of Court Administration’s Nonjudicial Ethics Helpline (888-283-8442).

Digest:         (1) The Chief Judge of a City Court should not be involved in the assignment of cases in which the defendant is represented by the judge's brother, an attorney who appears regularly before the two other judges of the court. (2) A part-time court attorney should seek the guidance of the Office of Court Administration concerning political activity on behalf of the electoral campaign of the Chief Judge of the court.

Rules:          22 NYCRR 25.39; 100.2(B); 100.2(C); 100.3(E)(1)(e); 100.5(C).

Opinion:

         The Chief Judge of a City Court informs the Committee that the judge's brother is a defense attorney who regularly appears before the two other judges of the Court. As Chief Judge, the inquirer oversees scheduling and the assignment of cases. The inquirer asks, "Does [my] brother jeopardize his ability to practice in the court, if he assumes a position on the campaign committee to elect [me] to a higher judicial office?"

         In the opinion of the Committee, the sibling relationship does not bar the inquirer's brother from appearing before the two other judges of the Court. The role of the brother in a judicial campaign on behalf of the inquirer is irrelevant since the brother is not appearing before the Chief Judge, and the campaign role adds nothing to the constraints already arising out of the familial relationship. 22 NYCRR 100.3(E)(1)(e).

         However, the Committee is concerned that, as the assigning and scheduling judge for the Court, the judge may be involved in the assignment of the brother's cases. This, in the Committee's view, might possibly give rise to a perception of favoritism. As stated in section 100.2(B) of the Rules Governing Judicial Conduct, "A judge shall not allow family, social or political relationships to influence the judge's judicial conduct or judgment." Also, section 100.2(C) provides that "A judge shall not convey or permit others to convey the impression that they are in a special position to influence the judge."

         The Committee is cognizant of the fact that the assignment and scheduling of cases and judges is not a trivial or inconsequential decision and, depending upon the particular circumstances, could be perceived by the public as evincing favoritism. Avoidance of such a perception, in the Committee's opinion, requires that the judge divorce himself/herself from any role in the assignment of the brother's cases. Assignment of the brother's cases should be made administratively by the Court Clerk or other administrative designee.

         The Chief Judge also asks the following: "... whether the part-time court attorney assigned to city court would be precluded from taking an active role in the Chief Judge's campaign. Can he purchase tickets to fundraising events?" Since the person in question does not appear to be a personal appointee of the judge, section 100.5(C) of the Rules, entitled "Judge's Staff" is not drawn in issue. Nonetheless, section 25.39 of the Rules of the Chief Judge ("Prohibition Against Certain Political Activities; Improper Influence," 22 NYCRR 25.39), applies to employees of the Unified Court System, and therefore guidance should be sought from the Office of Court Administration by the court attorney with respect to both questions.