April 24, 2014
Digest: A judge need not disclose that his/her minor children work part-time as babysitters for the children of an attorney who appears in the judge's court and need not disqualify him/herself when the attorney appears.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3 (E)(1)(e); Opinions 11-125; 11-94; 09-04; 08-166; 91-125 (Vol. VIII).
A recently elected town justice advises that his/her minor children work as part-time babysitters for several families in the judge's community, including for a family whose children's father is an attorney who regularly appears in the judge's court. The judge's children have known the attorney's family since 2007 and have been working for the family for about a year. The judge's children take turns working about three hours a week at a standard local rate of $5.00 an hour. The judge inquires as to his/her ethical obligations arising from this relationship.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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]). A judge must not allow family, social, political or other relationships to influence the judge's judicial judgment or conduct (see 22 NYCRR 100.2[B]) and must disqualify him/herself from any proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
Here, the judge’s children are minors providing child care on a limited basis to an attorney’s family for de minimis weekly earnings. In the Committee's view, the inquiring judge's children's connection to the attorney's family is social in nature rather than professional and, thus, distinguishable from circumstances where a judge’s adult child is employed in a professional capacity by an attorney or law firm (see e.g. Opinions 11-94; 09-04; 91-125 [Vol. VII]).
Given these facts, and in light of the absence of any other extra-judicial relationship between the judge and the attorney (see Opinion 11-125), the Committee does not believe the judge’s impartiality could reasonably be questioned (cf. Opinion 08-166 [where a judge’s children’s care for an attorney’s children is merely one of the many factors present in the judge’s relationship to the attorney giving rise to the existence of a close social relationship that would compel disclosure]). Therefore, the judge need not disclose that his/her children babysit for the attorney’s children nor disqualify him/herself for that reason.