January 27, 2022
Digest: Where a judge’s first-degree relative is an entry-level staff attorney with a not-for-profit legal services provider, in a division or unit that has absolutely no involvement in the kinds of matters that come before the judge’s court, the judge may preside in matters involving other attorneys of the same legal services provider. Neither disclosure nor disqualification is required, as long as the judge is satisfied their relative has had, and is likely to have, absolutely no involvement with the case.
Rules: 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(e); Opinions 20-73; 17-150; 14-64; 08-182; 97-82.
The inquiring housing court judge has a jurisdiction “strictly limited to residential landlord tenant disputes.” The judge’s first-degree relative1 is an entry-level staff attorney in the domestic violence division of a local legal services provider. The agency also has a landlord/tenant division, and attorneys from this unit regularly appear before the judge. The judge’s relative has no interaction with attorneys from the landlord/tenant division, no supervisory responsibilities, and appears solely in family court. The judge asks if disclosure or disqualification is required in matters involving other attorneys from the legal services agency.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must disqualify when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]), including where the judge knows they are related within the fourth degree of relationship to a person acting as a lawyer in a proceeding (see 22 NYCRR 100.3[E][e]).
In Opinion 20-73, we considered the effect of a judge’s former employment with a not-for-profit legal aid society. We followed the analogy of prior government employment, rather than prior employment in a private law firm, as there is no appearance of a “financial or business relationship” among colleagues at a not-for-profit legal aid society (id. [quoting Opinion 17-150]).
Here, for similar reasons, we believe it appropriate to follow the analogy of a first- or second-degree relative employed in a government law office, rather than in a private law firm. Thus, neither disclosure nor disqualification is mandated in matters involving other attorneys from the same not-for-profit legal services provider that employs the judge’s first-degree relative as an entry-level staff attorney, where the judge is satisfied their relative has had, and is likely to have, absolutely no involvement with the case (see e.g. Opinions 08-182 [sibling]; 97-82 [spouse]; 17-150 [second-degree relative]). Thus, where the judge’s relative is employed in a division or unit that has absolutely no involvement in the kinds of matters that come before the judge’s court, the judge may preside in matters involving other attorneys from other units of the same legal services provider.
1 A first-degree relative includes a child, step-child, parent, or step-parent (see Opinion 14-64 fn 1; cf. 22 NYCRR 100.0[C]).