September 8, 2016
Digest: Provided he/she can be fair and impartial, a judge may preside in cases involving an attorney who represented his/her third-degree relative on other matters. Disclosure is not required.
Rules: Judiciary Law §14; 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(F); Opinions 16-66; 14-147; 14-51; 13-132; 12-111; 10-168; 09-55; 07-128; 06-111.
A full-time judge asks if he/she must recuse when an attorney who has represented the judge’s third-degree relative (a niece, nephew, aunt, uncle, great-grandparent or great-grandchild) appears before the judge.1 While he/she was not involved in picking or hiring the attorney, the judge knows the representation has completely terminated, and all fees have been paid.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge also must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in specific instances set by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law §14).
The Committee has recognized that a judge’s impartiality may reasonably be questioned when a private attorney appearing before the judge is representing, or has recently represented, the judge’s first- or second-degree relative, such as a parent, child, sibling, grandparent, or grandchild by blood or marriage (see Opinions 16-66; 13-132; 10-168; 09-55; 07-128). Therefore, in such cases, a judge is disqualified, subject to remittal, while the representation is ongoing and until the attorney fees have been fully paid (see Opinions 16-66; 12-111; 10-168). Also, disclosure is mandatory for a two-year period after the representation has concluded (see Opinions 12-111; 09-55; 07-128).
The Committee has not previously considered a judge’s obligation, if any, with respect to attorneys retained by the judge’s more distant relatives (i.e., those beyond the second degree of relationship). However, the Committee has observed that relationships within the second degree generally “denot[e] a more intimate and significant family connection,” necessitating recusal obligations (Opinions 16-66; 06-111).
In the Committee’s view, the mere fact that an attorney appearing before the judge has an attorney-client relationship with a judge’s more distant relatives (beyond the second degree) is insufficient, by itself, to trigger disqualification or disclosure obligations. Thus, where a judge believes he/she can be fair and impartial, he/she ordinarily has no obligation to disclose or recuse merely because an attorney appearing before him/her has represented the judge’s niece, nephew, aunt, uncle, cousin, or any other relative beyond the second degree of relationship.
Of course, when a judge knows of the attorney-client relationship between a third-degree relative and a particular attorney, the judge should carefully consider whether any additional circumstances might cause the judge’s impartiality to reasonably be questioned. No such facts are evident here. Thus, if this judge believes he/she can be fair and impartial, he/she need not disqualify him/herself from cases involving his/her third-degree relative’s former attorney nor disclose such relationship.
1 When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (e.g. Opinion 14-147 n 1). This judge has described a domestic partnership that must also be treated as the equivalent of a spousal relationship under the circumstances (cf. Opinion 16-66).