April 29, 1999
Digest: A judge may preside over matters
in which the spouse of the judge's court attorney and the parent of the
assistant district attorney are attorneys employed by a district attorney's
office in another county, and is not required to disclose the relationships.
Rule: 22 NYCRR 100.3(E)(1); 100.3(F)
Opinions 97-07 (Vol. XV); 90-33 (Vol. V);
88-140 (Vol. III).
A judge inquires whether there must be disqualification in a proceeding where the spouse of the court attorney is an assistant district attorney in another county and the parent of the assistant district attorney assigned to prosecute the matter is the executive assistant district attorney in that same county. The judge notes that, although the two individuals employed in the other county's District Attorney's office do not have daily contact, the executive assistant district attorney may be part of a panel that determines salaries and promotions for the office.
This Committee is of the opinion that there is no ethical bar to the judge presiding over matters in which the assistant district attorney appears. Nor is there any requirement of disclosure of the relationship and consent by the parties, as might be the case where the relative or member of the relatives' office is appearing before the judge. See e.g. Opinion 97-07 (Vol. XV); 90-33 (Vol. V); 88-140 (Vol. III). Here, the relatives' office is in another county and therefore assistants from that office will not be prosecuting cases in the inquiring judge's court. And the fact that the parent of the assistant district attorney appearing before the judge may possibly have some role in determining the salary of the spouse of the judge's court attorney is too speculative and remote, in our view, to give rise to any reasonable basis for requiring recusal or disclosure.
In short, the Rules Governing Judicial Conduct specify the circumstances under which a judge must disqualify him/herself and under which there may be a remittal of that disqualification. 22 NYCRR 100.3(E)(1); 100.3(F). In our opinion, the circumstances as described do not create a situation where the impartiality of the judge might reasonably be questioned and therefore do not require the judge's disqualification or disclosure of the relationships for the purpose of ascertaining whether the parties consent to the judge's presiding over the matter.