June 13, 1988
NOTE: This opinion has been modified in part by Opinion 14-147 (“On further consideration, the Committee believes that it is unduly intrusive and unnecessary for a judge to attempt to impose such a [fee-sharing] restriction on the law firms of his/her relatives, such as nephews, nieces, uncles, aunts, great-grandparents, great-grand-children, and cousins. Accordingly, Opinion 88-21 is hereby modified to be consistent with this view.”).
Topic: Surrogate’s appointment of partners and associates of his first cousin to fiduciary positions, and appearance of these partners and associates before such Surrogate.
Digest: A Surrogate may appoint partners and associates of his first cousin to fiduciary positions; and partners and associates of his first cousin may appear and practice before him, provided that the cousin does not share in the fees that his partners and associates receive for these functions.
Rules: Canon 3(c)(1)(d)(iii) of the Code of Judicial Conduct; Rules of the Chief Administrator of the Courts, 22 NYCRR 100.2, 100.3(c)(1)(iv) (b), 100.3(b)(4) and 100.3 (c)(1)(v); 22 NYCRR 36.1(b)
A Surrogate asks whether he may appoint the partners and associates of his first cousin to fiduciary positions and whether the partners and associates of his first cousin may appear as attorneys before such Surrogate.
Section 36.1(b) of the Rules of the Chief Judge (22 NYCRR 36.1[b]) provides as follows:
No person shall be appointed who is a relative of, or related by marriage to, a judge of the Unified Court System of the State of New York. This provision shall apply only to known relatives of judges and not to the professional associates of those relatives.
Canon 3(C)(1)(d)(iii) of the Code of Judicial Conduct provides that a judge should disqualify himself where his “impartiality might reasonably be questioned,” specifically including matters where a person within the third degree of relationship has “an interest that could be substantially affected by the outcome of the proceeding.”
Similarly, 22 NYCRR 100.3(c)(1)(iv)(b) provides that a judge shall disqualify himself where his “impartiality might reasonably be questioned,” including matters where a person within the sixth degree of relationship has “an interest that could be substantially affected by the outcome of the proceeding.” Further, 22 NYCRR 100.3(b)(4) provides that “A judge shall not appoint or vote for the appointment of any person as a member of his or her staff or that of the court of which the judge is a member, or as an appointee in a judicial proceeding, who is a relative within the sixth degree of relationship of either the judge or the judge’s spouse,” and 22 NYCRR 100.3(c)(1)(v) requires disqualification where “the judge or the judge’s spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding.” Accordingly, the Surrogate may not appoint his cousin as a fiduciary1; nor may the Surrogate's cousin appear before him as an attorney in court.
However, the members of the firm in which the Surrogate's cousin is a partner, may be appointed as fiduciaries, and may appear as counsel before the Surrogate, provided that the Surrogate makes it clear to them that his cousin may not participate in the fees which his cousin's partners or associates receive in those matters. The Surrogate should guard against any appearance of impropriety in connection with his cousin's partners and associates, particularly where the cousin's law firm is a very small one.
This opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.
1 However, this prohibition does not apply to the appointment of a guardian, executor, administrator or other fiduciary who is a relative of, or who has a legally recognized duty or interest with respect to the affairs of the infant, ward, incompetent, conservatee, decedent or beneficiary of an estate, or a person whose appointment is required by law, or any other such appointment that essentially is not discretionary with the Surrogate. (See, e.g. 22 NYCRR 36.1[e]).