Opinion: 99-17

January 28, 1999

Digest:  Subject to remittal, a judge should disqualify him/herself in any proceeding involving a law firm that is hiring the judge's son, who is a lawyer, even though the son's employment will not commence until several months hence.

Rule:  22 NYCRR 100.3(E)(1); 100.3(E)(1)(e); 100.3(F);
           Opinions 90-94 (Vol. VI); 91-125 (Vol. VIII);
           94-01 (Vol. XII).


            The inquiring judge's son, who is a lawyer, is being hired by a law firm that practices in the judge's court. The son's employment will begin several months hence. The judge asks, what considerations should govern the judge's conduct in relation to the law firm between now and the actual commencement of employment.

            Under the Rules Governing Judicial Conduct, a judge must disqualify him/herself in all proceedings involving an attorney who is related to the judge within the fourth degree of relationship. 22 NYCRR 100.3(E)(1)(e). This would include the law firm with which the judge's child is associated. Opinions 90-94 (Vol. VI); 91-125 (Vol. VIII); 94-01 (Vol. XII). Disqualification on this basis is subject to remittal following disclosure by the judge and agreement of the parties. 22 NYCRR 100.3(F).

            The Committee is of the opinion that the same considerations that require disqualification were the son presently an attorney with the firm likewise mandate recusal now. All occasions for disqualification are grounded in the conclusion that disqualification is required because the particular situation is one "in which the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1). Accordingly, although the son has not yet actually commenced employment with the firm, it is our view that the judge's "impartiality might reasonably be questioned" were the judge to preside over a matter involving the law firm that has committed to hiring the son. Therefore, the judge should disqualify him/herself in an proceeding involving the law firm. Remittal of the disqualification is, however, available under section 100.3(F) of the Rules.