June 12, 2014
Digest: A judge may preside in matters involving an attorney who was initially appointed as Attorney for the Child in the judge’s relative’s custody proceeding, as the attorney’s involvement in the judge’s relative’s case was brief and preliminary in nature. The judge may also appoint the attorney to positions for which the attorney is eligible, provided that the judge does so impartially and on the basis of merit.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(C)(3); 100.3(E)(1); Opinions 14-51; 08-165.
The inquiring judge states that his/her first-degree relative by blood or marriage is a party to a custody action in another court. In that action, a particular attorney was briefly appointed as Attorney for the Child, but was subsequently relieved of the assignment. The attorney has advised the judge that during the attorney’s brief involvement in the judge’s relative’s custody matter as Attorney for the Child, he/she (1) interviewed both parents and the child; (2) did not appear in court on the child custody matter; (3) made no recommendations to the parties, attorneys, or the court in the matter; and (4) returned the uncashed retainer checks to the parties.1 In light of these circumstances, the judge asks whether he/she may continue to preside in matters in which the attorney appears and whether the judge may continue to appoint the attorney to positions for which the attorney is eligible, while the judge’s relative’s custody case is pending.
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]). In particular, a judge must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge, therefore, must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
In Opinion 08-165, the Committee advised:
As for the District Attorney who initially prosecuted the judge’s child, but quickly was replaced as prosecutor by the District Attorney of a neighboring county, and the Judge who presided over the arraignment and then exercised recusal, the inquiring judge need not disqualify him/herself nor disclose their involvement in his/her child’s case when they appear before him/her. As their involvement in the case was brief and only preliminary in nature, it is the Committee’s view that the inquiring judge’s impartiality cannot reasonably be questioned when either of them appears before him/her. The same holds true for their partners and associates and for the arraigning judge’s spouse (see 22 NYCRR 100.3[E]).
The Committee applied the same reasoning in Opinion 14-51, where an “assistant public defender was briefly assigned to represent the judge's relative” on appeal, but was soon discharged in favor of a private attorney. During the brief representation, the defender “ordered the trial transcript and filed a motion to extend the time to appeal but took no further action” (id.). Under those circumstances, given that the defender “performed no substantive work,” the Committee concluded that “neither disclosure nor disqualification is required where the defender’s involvement in the judge’s relative’s case was ‘brief and preliminary in nature’” (id.).
Here, too, apparently the attorney’s involvement as the Child’s attorney judge’s relative’s custody case was “brief and preliminary” and thus the judge’s impartiality cannot reasonably be questioned (see 22 NYCRR 100.3[E]; Opinions 14-51; 08-165).
Accordingly, neither disclosure nor disqualification is required solely due to this prior representation (see id.). Therefore, the judge may preside in matters where the attorney appears and may appoint him/her to positions for which he/she is eligible, provided the judge does so impartially and based on merit (see 22 NYCRR 100.3[C]).
1 The judge and his/her spouse are not part of the financial arrangements of the custody matter and did not speak with the Attorney for the Child about the case.