Opinion 99-35

March 11, 1999

Please Note: This opinion was initially overruled in Opinion 08-126 and then re-instated by Opinion 13-26. 

Digest:         A judge, whose law clerk is married to the County Attorney, need not recuse him/herself when the County Attorney or attorneys on the County Attorney's staff appear, but should disclose the relationship to all parties and their attorneys and insulate the law clerk from participation in the case.

Rule:            22 NYCRR 100.3(E)(1); 100.3(E)(1)(e); Opinion 90-33 (Vol. V).

Opinion:

         A judge, whose law clerk is married to the County Attorney, asks whether disqualification is required in cases where the County Attorney or attorneys on the County Attorney's staff appear in matters pending before the court.

         A judge must exercise recusal in any proceeding in which the judge's impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). Specifically listed as requiring disqualification, are proceedings involving attorneys who are related to the judge within the fourth degree of relationship. 22 NYCRR 100.3(E)(1)(e). No mention is made of relatives of members of the judge's staff. Thus, a judge need not disqualify him/herself based solely upon the law clerk's familial relationship to an attorney appearing in the court. Nonetheless, in our opinion, the judge should disclose the relationship to all parties and their attorneys and must insulate the law clerk from participation in the case. Opinion 90-33 (Vol. V).

         In the instant case, since the County Attorney is appearing personally or through subordinates in every matter involving the office, the requirement of disclosure and insulation of the law clerk from involvement, must extend to all matters pending in the court which involve the County Attorney's office.