March 13, 1997
Digest A judge (1) should disqualify himself/herself in all matters being handled by an attorney who is presently representing the judge's son in a Family Court juvenile delinquency proceeding, unless after disclosure, all parties consent to the judge's presiding, and (2) should not assign the attorney in any matter while the attorney is representing the son.
Rules: 22 NYCRR 100.2 (A),(B), 100.3(E)(1), 100.3(F); Opinion 92-60 (Vol. IX).
The son of a County Court judge who also sits in the Supreme Court, Family Court, and Surrogate's Court, is the subject of a juvenile delinquency petition in Family Court. The judge would like to retain on the son's behalf an attorney who several years previous had been assigned to represent the judge's oldest son, also in a Family Court proceeding. As stated by the judge, the county has a relatively small number of lawyers and "the lawyers that do criminal work, which is usually assigned are frequently the same lawyers who are appointed in family court."
In light of those circumstances, the judge asks:
... whether or not this attorney's potential representation of my son would disqualify her from appearing in front of me or alternatively, would permit the opposing party to have her disqualified if she appears in front of me. If that is the case, it seems that it would be unfair to her to ask her to represent my son as that might impact on my ability to assign her in cases.
The Committee addressed a similar inquiry in Opinion 92-60 (Vol. IX), where the question was "whether recusal is required where the judge's son presently is being represented in another court on a traffic violation by an attorney who is scheduled to represent another defendant in a trial before the judge." (Opinion 92-60). The Committee concluded that the judge should recuse himself or herself but that if the judge believed that he or she can be impartial, the judge should disclose the relationship to the parties, offer to recuse, and may preside if all parties consent in writing are on the record.
Under the facts presented in this inquiry, the result should be the same. As provided in the Rules Governing Judicial Conduct, "A judge... shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary" (22 NYCRR 100.2[A]), and "... shall not allow family... relationships to influence the judge's judicial conduct or judgment." (22 NYCRR 100.2[B]). Further, "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned..." (22 NYCRR 100.3[E]).
Each of these considerations is present in the inquiry now before the Committee. In our view it therefore follows that should the inquiring judge retain the proposed attorney, there should be recusal in all matters in which the attorney appears while representing the judge's son, subject to remittal upon disclosure and consent of all parties. (22 NYCRR 100.3[F]). Moreover, the judge should not assign this attorney in any matter while the attorney is representing the son, since such assignments could readily lead to the perception that the judge was allowing family considerations to influence the judge's judicial conduct. (22 NYCRR 100.3[B]).
Thus, given the judge's concern about the fact that the attorney apparently is a recipient of Family Court and criminal assignments in the county and the possible impact on her practice, as well as the fact that the judge serves on four different courts in the county, the Committee suggests that it might be preferable for the judge to seek representation for the son outside the county. By retaining counsel who does not regularly appear in the courts where the judge serves, the concerns expressed by the judge, including the frequency of occasions for recusal, would be considerably diminished if not eliminated.