Opinion 99-49

March 11, 1999

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

Digest:         A judge whose law clerk is related, within the fourth degree of relationship, to several attorneys who practice in the judge's court, need not recuse him/herself when those attorneys 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)(e); Opinion 90-33 (Vol. V); 99-35.

Opinion:

         A judge asks whether disqualification is required in any case where a relative, within the fourth degree of relationship to the law clerk serving that court, appears as an attorney in a matter pending before the court. Apparently the law clerk has several relatives who are attorneys and who appear in the court.

         Although the Rules Governing Judicial Conduct provide that a judge must disqualify him or herself in proceedings involving attorneys who are related to the judge within the fourth degree of relationship (22 NYCRR 100.3[E][1][e]), there is no similar requirement based solely upon the law clerk's familial relationship to an attorney appearing in the court. Nonetheless, the Committee is of the view that the judge should disclose the relationship to all parties and their attorneys and insulate the law clerk from participation in the case. Opinions 90-33 (Vol. V); 99-35.