November 10, 2011
Dear Judge :
This responds to your follow-up inquiry (11-106[A]) to inquiry 11-106, asking whether you may preside over certain cases if your child is appointed to the position of part-time county attorney in the event that “outside” counsel is hired to represent the county’s legal interests.
If the county retains “outside” counsel, but your child will still be involved in the litigation in some way as county attorney, you must disqualify yourself, subject to remittal, when “outside” counsel appears in your court during the course of such litigation (see 22 NYCRR 100.3[E]; 100.3[F]). However, if the county retains “outside” counsel that is completely independent from the county attorney’s office, and your child has absolutely no input into “outside” counsel’s representation, then you may preside when “outside” counsel appears in your court as there would then be no appearance of impropriety (see 22 NYCRR 100.2), and your impartiality may not reasonably be questioned (see 22 NYCRR 100.3[E]).
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division,First Dept. (Ret.)