22 NYCRR 100.3 (E) (1) (e); 100.3(F);
Opinions 94-01 (Vol. XII); 96-42 (Vol. XIV).
A judge of the Civil Court of the City of New York advises that the judge's nephew has become associated with a large firm that has a substantial practice in the Housing Part of the judge's court, and inquires whether it is permissible to continue to preside over cases in which partners or other associates of the firm appear as attorneys for one of the litigants.
Section 100.3 (E) (1) of the Rules of the Chief Administrator provides:
. . .A judge shall disqualify himself or herself in a
proceeding in which the judge's impartiality might
reasonably be questioned, including but not limited
to instances where:
(e) The judge knows that the judge or the judge's spouse,
or a person known by the judge to be 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.
The judge has acknowledged the requirement of the Rule, and expects to disqualify himself/herself in any case in which the nephew appears as an attorney for a party.
Section 100.3 (F) of the Rules provide that the judge's disqualification can be waived upon consent obtained and placed on the record as set forth therein:
Thus, the open inquiry is whether partners or other associates of the nephew's law firm may properly appear as attorneys in cases in which the judge presides. That question has been before this Committee on several prior occasions. In Opinion 94-01 (Vol. XII) the Committee stated:(F) Remittal of Disqualification. A judge disqualified
by the terms of subdivision (E), except subparagraph
(1) (a) (i), subparagraph (1) (b) (i) or (ii) or subpara-
graph (1) (d) (i) of this section, may disclose on the
record the basis of the judge's disqualification. If
following such disclosure of any basis for disqualifi-
cation, the parties who have appeared and not defaulted
and their lawyers, without participation by the judge, all
agree that the judge would not be disqualified, and the
judge believes that he or she will be impartial and is
willing to participate, the judge may participate in the
proceeding. The agreement shall be incorporated in
the record of the proceeding.
Thus, assuming that the inquirer believes that he or she can be impartial, it is not ethically improper for the judge to preside in cases where partners or associates of the nephew's law firm appear.The judge may sit in cases where associates of the
[relative] appear, provided the judge feels that he
or she can be impartial. There is no affirmative duty
to disclose the relationship when the associate appears.
Opinion 94-01 (Vol. XII); see also, Opinion 96-42 (Vol. XIV).