Opinion 98-159

March 11, 1999

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

Digest:         A judge whose son is an attorney with the County Public Defender may not preside over any case in which the son was involved unless there is a remittal of the disqualification, including a waiver by the prosecutor. Disclosure and recusal are not required in other cases where the defendant is represented by the Public Defender.

Rule:            22 NYCRR 100.2(B); 100.3(E)(1); 100.3(F); Opinion 97-39 (Vol. XV).

Opinion:

         A judge who is the only county judge in the county, presides over most of the felony cases that originate in the county. The judge's son, an attorney, has just taken a part-time position with the county's Public Defender Office. As stated by the judge, "In that position, he will on occasion be representing defendants with felony charges. Such representation will only be through the preliminary hearing stage. He will not represent these individuals in County Court, nor will he represent them in Grand Jury proceedings."

         The judge seeks the Committee's advice on the following matters:

I would appreciate your advice as to whether there is any ethical problem with my presiding over specific cases in which my son has been involved in the lower court or in which the Public Defender's Office is involved in County Court. I would also appreciate your advice as to whether any affirmative disclosure must be made by me on each case that I preside over and which involves or involved representation by the Public Defender.

         In our opinion, the judge is required to exercise recusal in any case in which the son had been involved. Otherwise, the judge runs the risk of being perceived as contravening section 100.2(B) of the Rules Governing Judicial Conduct, which forbids a judge from allowing his or her "family, social, political or other relationships to influence the judge's judicial conduct or judgment." 22 NYCRR 100.2(B). For in such cases, "the judge's impartiality might reasonably be questioned" (22 NYCRR 100.3[D][1]). See generally, Opinion 97-39 (Vol. XV). But disqualification in such instances would be subject to remittal under section 100.3(F) of the Rules. That is, upon disclosure and consent of both sides, including a specific waiver by the prosecutor, the judge could preside as provided for in section 100.3(F).

         It is also our opinion that the requirement of affirmative disclosure and recusal is not mandated with respect to other cases in which the office of the Public Defender is involved. The fact that the judge's son is employed as a part-time attorney with that office does not, in and of itself, necessitate the invocation of a disqualification procedure.