September 7, 2006
Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”
Digest: A judge should exercise recusal, subject to remittal, where the judge’s sibling or another lawyer in the sibling’s law firm appears before the judge.
Rules: 22 NYCRR 100.3(E)(1)(e); 100.3(F); Opinions 06-149; 04-100; 03-10; 99-17 (Vol. XVII); 98-85 (Vol. XVII); 95-60 (Vol. XIII); 94-01 (Vol. XII); 91-125 (Vol. VIII); 87-08 (Vol. I); 87-03 (Vol. I).
A Supreme Court Justice states that his/her sibling is a partner in a local law firm. The judge asks whether he/she should recuse in all cases involving the firm, even where the judge does not “know or have a relationship with the attorney appearing on behalf of the firm.” Additionally, the judge asks whether recusal is necessary where his/her sibling is appearing, if the judge discloses the relationship “and there have been no objections” to the judge hearing the case.
As to the latter question, where the lawyer in a proceeding is within the fourth degree of relationship to the judge or the judge’s spouse, or is the spouse of such a person, disqualification is mandatory. 22 NYCRR 100.3(E)(1)(e). Because the sibling relationship falls within the fourth degree, the judge is therefore disqualified from hearing any case in which his/her sibling appears as lawyer. Opinions 03-10; 87–08 (Vol. I).
Although this disqualification is subject to remittal under section 100.3(F) of the Rules Governing Judicial Conduct, the inquirer’s suggested procedure does not conform to the requirements of that section. Where a judge is disqualified and the basis of the disqualification does not preclude remittal, it is not incumbent upon a party to voice an objection to the judge presiding in order to effectuate the disqualification.
Rather, under section 100.3(F), remittal is available only if the “parties . . . and their lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate . . . The agreement shall be incorporated in the record of the proceeding.” 22 NYCRR 100.3(F). In other words, the judge may not preside merely because a party has failed to object following the disclosure, but may only preside if the requirements set forth in this section have been met. Id. Moreover, where one of the parties is self-represented, it is our view that remittal should not be available. E.g., Opinions 06-149; 04-100.
As to other attorneys from the sibling’s law firm appearing before the judge, we are of the opinion that the judge should not preside in such instances. Although in some prior opinions, the Committee has held that although the judge was disqualified with respect to a particular attorney because of section 100.3(E)(1)(e) or its predecessor, the firm with which he/she was associated was not necessarily disqualified, the relationships in those instances were more attenuated than that of sibling, such as cousin (Opinion 95-60 (Vol. XIII)); cousin-in-law (Opinion 94-01 (Vol. XII)); and nephew (Opinion 98-85 (Vol. XVII)).
Where the relationship between the judge and the lawyer is within the second-degree of consanguinity, denoting a more intimate and significant family connection, the Committee has concluded that it is advisable for the judge to recuse where other attorneys in the relative’s law firm appear, subject to remittal. Such relationships include the judge’s spouse (Opinion 95-35 (Vol. XIII)); son (Opinion 99-17 (Vol. XVII)); son-in-law (Opinion 87-08 (Vol. I)); daughter-in-law (Opinion 91-125 (Vol. VIII)); and, as here, sibling (Opinions 03-10, 87-03 (Vol. I)).
Thus, we conclude that in this instance, the inquirer should also exercise recusal when other attorneys in his/her sibling’s law firm appear before the judge, subject to remittal in accordance with section 100.3(F) of the Rules.