Opinion 09-33

February 26, 2009

Hon.

Dear Justice :

         This responds to your inquiry (09-33) asking whether there is any ethical prohibition to presiding if the Public Defender, who is your spouse’s second cousin, were to represent a defendant in your court. While the Rules Governing Judicial Conduct do not require disqualification or disclosure in this circumstance (see 22 NYCRR 100.3[E][1][e]), the Committee believes the better practice would be to disclose the relationship in order to avoid any question about your impartiality (see 22 NYCRR 100.2[B]; 100.3[E][1]). In the event of a recusal request, your decision is discretionary depending on the actual relationship (i.e., remote vs. close) between the two of you and your respective families, and on any other pertinent circumstances.

         Enclosed, for your convenience, is Opinion 07-06, which relates to this issue.

                                                 Very truly yours,

                                                 George D. Marlow

                                                 Justice of the Supreme Court

                                                 Committee Chair

Enc.