Opinion 25-167

November 6, 2025

Digest:  (1) Once a judge’s aunt/uncle becomes the Public Defender the judge is disqualified, subject to remittal, in all matters involving that office.  This remains true even if the Public Defender (a) does not participate in the case and is not listed as the attorney of record; (b) insulates him/herself from all supervisory and administrative duties applicable to the assistant public defenders who appear in the judge’s court; and (c) maintains an office in an entirely different building from the assistant public defenders who appear in the judge’s court.
(2) Once the judge’s disqualification is properly remitted in a particular criminal case, the judge may preside in that case if the judge can be fair and impartial.

Rules:   22 NYCRR 100.0(C); 100.2; 100.2(A)-(C); 100.3(E)(1); 100.3(E)(1)(e); 100.3(F); Opinions 24-191; 20-82/20-86; 19-150; 18-27; 17-89; 16-67; 08-212.

Opinion: 

          The inquiring judge’s aunt/uncle by blood or marriage is under consideration for appointment as the Public Defender for the county.  A discrete set of assistant public defenders regularly appears in the judge’s court, but the judge’s relative is willing “to take all steps that would prevent [his/her] being considered the ‘attorney of record’ in any” case before the judge.  First, as the specific assistant public defenders who appear in the judge’s court work at an office located within the courthouse, the judge’s relative proposes to “work in an entirely different office building” rather than being “physically located” with them.  Second, the judge’s relative “would not personally appear in [the] courtroom.”  Third, the judge’s relative will “fully insulate [him/herself] from all supervisory and administrative duties applicable” to the assistant public defenders who appear in the judge’s court by “shift[ing]” those duties to the Deputy Public Defender.  Fourth, the judge’s relative “would not be the ‘attorney of record’ for any of these cases.”  The judge believes these steps “would create a firewall” for “all cases while they are in the jurisdiction of” the judge’s court.  The judge asks if these steps will allow the judge to preside in matters involving assistant public defenders after the judge’s aunt/uncle accepts appointment as the Public Defender.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).  Therefore, a judge must disqualify him/herself in a proceeding where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when the judge knows that a person related to the judge within the fourth degree of relationship by blood or marriage is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]).  An aunt/uncle is a relative in the third degree of relationship (see 22 NYCRR 100.0[C]).

          Where a relative within the fourth degree of relationship heads a public law office, the judge is disqualified in all matters involving that office.  For example, where a judge’s first cousin is the Corporation Counsel for a local municipality, the judge is disqualified when the cousin or “other attorneys from that office” appear before the judge (see Opinion 08-212).  Similarly, when a judge’s spouse heads the Public Defender’s office, “the judge is disqualified in all matters involving that office” (Opinion 24-191; see also Opinion 19-150).  In each instance, we recognized that the disqualification is subject to remittal (see Opinions 24-191; 19-150; 08-212), although the requirements are more stringent when the judge “knows the relationship to be within the second degree” (22 NYCRR 100.3[E][1][e]; 100.3[F]; see also Opinion 24-191).

          Conversely, where a judge’s relative does not head the office, we have recognized that insulation may be possible.  For example, in Opinion 18-27, a judge’s second-degree relative was the First Deputy District Attorney, “a senior supervisory member of the District Attorney’s staff.”  The head of the office (i.e. the District Attorney) proposed that the judge’s relative “will be completely insulated from evaluating, supervising or overseeing any matter that is scheduled in the judge’s court” and also proposed that “other high-level prosecutors, not subject to the First Deputy’s supervision, would personally prosecute those cases” (id.).  In our analysis, we noted (id.):

insulation of an entry-level employee . . . is undoubtedly easier than insulating a First Deputy District Attorney.  Still, if the administrative judge is satisfied that the District Attorney can and will, in fact, completely insulate the First Deputy from any involvement whatsoever with any cases that may be assigned to the judge, including supervision, oversight or evaluation of any such cases, we believe the judge and his/her administrative judge may rely on these assurances.  Once these insulation measures are implemented, the judge may preside in other matters involving the District Attorney’s office without the need for disclosure or disqualification.

Significantly, in Opinion 18-27, the insulation was at least theoretically feasible because the judge’s relative was at the level of second-in-command rather than the actual head of the office, in whose name and under whose authority all the assistant district attorneys must act.  There were “other high-level prosecutors” who were, presumably, co-equal with the judge’s relative and therefore “not subject to [his/her] supervision” (id.).  Here, by contrast, the assistant public defenders would still be supervised by the Deputy Public Defender, who in turn remains answerable to, and subject to the supervision of, the Public Defender.  In essence, notwithstanding the attempted construction of a “firewall” for the cases that come before the judge’s court, the Public Defender remains the actual head of the office (cf. Opinion 17-89 [noting that the staff attorneys of a Public Defender’s office “are all answerable to him/her”]).

          Accordingly, we conclude the inquiring judge must disqualify him/herself, subject to remittal, from any cases involving the Public Defender’s office once the judge’s aunt/uncle assumes the position of Public Defender.  This remains true even if the Public Defender (a) does not participate in the case and is not listed as the attorney of record; (b) insulates him/herself from all supervisory and administrative duties applicable to the assistant public defenders who appear in the judge’s court; and (c) maintains an office in an entirely different building from the assistant public defenders who appear in the judge’s court.  The various proposed steps do not obviate the need for disqualification.

          Because the judge’s aunt/uncle is beyond the second degree of relationship, the usual procedures for remittal apply.  As always, when we say a judge “is disqualified subject to remittal,” our starting point is that the judge is disqualified in the matter and cannot take further action—other than disclosure of the basis for disqualification—absent the voluntary affirmative consent of the parties and their counsel (Opinion 20-82/20-86).  As we explained (id. [citations omitted]):

As far as the judge is concerned, he/she is disqualified.  Period.  It is now up to the parties and their counsel to decide whether to remit that disqualification.

Remittal, where permitted, is a three-step process: First, the judge must fully disclose the basis for disqualification on the record.  Second, without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified.  Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case.  If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.

In a setting where there are “repeat player” attorneys on both sides, we have emphasized that the remittal process “must, at a minimum, involve full disclosure of the basis for disqualification and, especially for the institutional defender, consultation with the client” (Opinion 16-67).

          Once the judge’s disqualification is properly remitted in a particular criminal case, the judge may preside in that case if the judge can be fair and impartial.