Opinion 07-171

October 18, 2007

Digest:         A judge, whose parents are residents of a nursing home, is not required to recuse when that nursing home appears before the judge seeking to have guardians appointed for other medicaid patients, unless the judge believes he/she cannot be impartial.

Rules:          22 NYCRR 100(E)(1); 100.3(E)(1)(d)(iii); Opinions 04-84; 92-107 (Vol. X).

Opinion: 

         An acting Supreme Court Justice asks whether recusal is required when a nursing home where his/her parents reside seeks to have guardians appointed for other patients at the home or whether mere disclosure is sufficient.

         The Rules Governing Judicial Conduct require that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned. . .” (22 NYCRR 100.3[E][1]). Moreover, if a “judge knows that...[someone] within the sixth degree of a relationship to [the judge]...has an interest that could be substantially affected by the proceeding,” he or she must recuse (22 NYCRR 100.3[E][1][d][iii]).

         This Committee has advised that where a judge’s mother owned less Opinion than .0001 percent of an outstanding stock of one of the parties in a class action before the judge, the judge need not recuse, as the mother did not have a “substantial interest” in the outcome (see Opinion 92-107 [Vol. X]). Here, the judge’s parents have no pecuniary interest in the outcome of the appointment of guardians for other patients and, therefore, no mandatory recusal obligation attaches.

         In cases where, as here, recusal is not mandated by 22 NYCRR 100.3(E)(1), the decision whether to recuse is left solely to the sound discretion of the judge, based upon whether the judge believes he or she can remain fair and impartial (see Opinion 04-84).