From Advisory Committee on Judicial Ethics: Amended Opinion 07-216 (Dec. 4, 2008)

[Originally published in NYPRR March 2009]

From time to time, NYPRR will publish an Opinion of the Advisory Committee on Judicial Ethics. The Opinions published are those selected by Justice George D. Marlow, Committee Chair, and Jeremy R. Feinberg, who serves among the Committee’s Counsel. Permission to reprint the Opinion below was requested by NYPRR because of its significance to New York lawyers who appear before the Courts.

The Advisory Committee on Judicial Ethics (www.nycourts.gov/ip/acje) responds to written inquiries from New York State’s full- and part-time judges, candidates for elective judicial office, and quasi-judicial officials such as support magistrates, court attorney-referees, and judicial hearing officers. The committee’s opinions interpret the Rules Governing Judicial Conduct [22 NYCRR Part 100], the Code of Judicial Con-duct and Part 36 of the Rules of the Chief Judge [22 NYCRR Part 36]. Justice George D. Marlow chairs the committee of 26 judges, and Maryrita Dobiel, Esq. is its Chief Counsel.

Amended Opinion 07-216 (Dec. 4, 2008)

DIGEST: A city court judge, whose sibling is the elected District Attorney of the jurisdiction over which the judge presides, is disqualified in any matter where his/her sibling appears and where an assistant district attorney who serves on the sibling’s staff appears. Such disqualification is subject to remittal, except when a party is self-represented.

RULES: 22 NYCRR 100.0(C); 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1)(e); 100.3(F); opinions 05-87; 98-29 (Vol. XVI); 98-27 (Vol. XVI); 97-39 (Vol. XV); 90-91 (Vol. VI); 89-127 (Vol. IV).

OPINION: A city court judge whose sibling has been elected District Attorney asks whether he/she is disqualified when an assistant district attorney on his/her sibling’s staff appears as the prosecutor.

Pursuant to the Rules Governing Judicial Conduct, a judge must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary [see 22 NYCRR 100.2[A]] and shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment [see 22 NYCRR 100.2[B]]. A judge also shall not convey or permit others to convey the impression that they are in a special position to influence the judge [see 22 NYCRR 100.2[C]]. A judge, therefore, must disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned, including when the judge knows that a person related to the judge within the fourth degree of relationship is acting as a lawyer in the proceeding [see 22 NYCRR 100.3[E][1][e]]. A judge’s sibling is a relative within the fourth degree of relationship [see 22 NYCRR 100.0[C]].

Clearly, the judge in the present inquiry must disqualify him/herself when his/her sibling appears in his/her court [see 22 NYCRR 100.3[E][1][e]]. With respect to assistant district attorneys on the judge’s sibling’s staff, the Committee generally has advised that where a judge’s relative is an attorney for a large public law office such as a Corporation Counsel, District Attorney, or Public Defender, the judge need not disqualify him/herself or disclose that his/her relative is employed as an attorney with the same office when other attorneys from such law offices appear in the judge’s court, so long as the judge’s relative had no involvement in the matter [see e.g., Opinions 97-39 (Vol. XV) — judge’s fiancée is an assistant district attorney in the large, urban county where the judge sits; 90-91 (Vol. VI) — judge’s spouse is an assistant district attorney in the large, metropolitan county where the judge presides; 89-127 (Vol. IV) — judge’s child is a part-time assistant district attorney (one of ten) in the county where the judge sits].

In the present inquiry, however, where the judge’s sibling is the District Attorney, he/she is the attorney of record in all criminal cases prosecuted in the county where the judge presides. In similar circumstances, the Committee advised that a justice of the Appellate Division whose spouse is the Deputy Chief of the Corporation Counsel’s tort division for a particular county within the municipality should exercise recusal in appeals of tort cases brought against the city which originate in that county [see Opinion 98-29 (Vol. XVI)]. In the Committee’s view, “ … the judge’s spouse occupies an office which is sufficiently elevated within the Corporation Counsel’s hierarchy as to warrant the inference of direct or indirect involvement in a substantial number, if not all, tort cases against the City that emanate from the county” [id.]. The Committee also advised that a judge whose spouse is the attorney-in-charge of the criminal practice of a legal services organization should not preside in criminal cases where the defendant is represented by the organization [see Opinion 05-87]. The Committee noted that, “…the spouse is in a position just below the attorney-in-chief, to whom he/she reports, and it is the spouse who bears the responsibility of overseeing all criminal practice operations including the very operations involved herein: State criminal trial proceedings” [id.]. Similarly, the District Attorney in this inquiry is involved either directly or indirectly in all criminal cases prosecuted in the county where the judge presides. The inquiring judge, therefore, must disqualify him/herself not only when his/her sibling appears before him/her, but also when any assistant district attorney on the sibling’s staff appears [see Opinions 05-87; 98-29 (Vol. XVI)].

In general, whether the judge disqualifies him/herself when his/her sibling appears or when an assistant district attorney on the judge’s sibling’s staff appears, such disqualification is subject to remittal [see 22 NYCRR 100.3[F]; Opinion 98-29 (Vol. XVI)]. The judge may disclose on the record the basis of his/her disqualification, and, if following such disclosure, the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree that the judge should not be disqualified, and the judge believes that he/she will be impartial and is willing to participate, the judge may participate in the proceeding. The agreement must be incorporated in the record of the proceeding [see 22 NYCRR 100.3[F]]. Nevertheless, remittal is not avail-able in ex parte matters (such as arraignments and search warrant applications) and when a party appearing before the judge is self-represented [see Opinion 98-27 (Vol. XVI)].

If the fact that the judge’s sibling is the District Attorney results in recusal so frequently that the judge’s ability to perform his/her judicial duties is impaired, the judge should consult his/her Administrative Judge to identify an administrative solution to the problem, such as assigning the judge to preside only in civil matters. Any such solution, however, is ultimately left to the discretion of the Administrative Judge.

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NYPRR Editor