Opinion: 96-21

March 12, 1996

Digest:  Under the particular circumstances shown, a recusal is not mandated where (1) the judge's law clerk is a member of the Board of Education, and a high school scholarship fund is a beneficiary under a will in dispute (2) the attorney for one of the parties is the president of the board of directors of a charity on which the judge serves, but the charity is not involved in the litigation.

Rules:  22 NYCRR 100.3(E).


            A Surrogate seeks the Committee's opinion concerning a contested estate matter. Under the terms of one of the wills in question, a portion of the estate has been bequeathed to the local high school for a scholarship fund to be established by and under the complete discretion and control of the decedent's attorney. The Surrogate's law clerk is a member of the local Board of Education but the Board would not have any involvement with the fund.

            In addition, the inquirer is a member of the Board of Directors of a charity. That charity is not a beneficiary under any of the wills involved, but the attorney for one of the charities named in some of the wills is the board president of the charity of which the inquirer is a board member.

            Based on the foregoing, that attorney in question has requested the Surrogate's recusal, on the ground of conflicts of interest as has the Attorney-General's office which appears as statutory representative of beneficiary charities.

            The question before the Committee is whether as a matter of judicial ethics, there must be recusal. In the opinion of the Committee none of the provisions of the Rules Governing Judicial Conduct pertaining to disqualification (22 NYCRR 100.3(E)) renders the judge disqualified in this case. As long as the judge believes that he/she can be fair and impartial, recusal is not mandated.