Opinion 09-161

September 10, 2009

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.


Digest:         A family court judge must disqualify him/herself, subject to remittal, from any child protective case prosecuted by the judge’s court attorney’s child or an attorney the judge’s court attorney’s child directly supervises.


Rule:            22 NYCRR 100.2; 100.2 (A); 100.3(E)(1); 100.3(F); 101.1; Opinion 08-126.



The inquiring family court judge presides in all child protective matters in his/her jurisdiction . The judge’s court attorney’s child, who resides in the court attorney’s home, is an attorney who prosecutes child protective cases and supervises other attorneys in his/her office who also prosecute such cases. The court attorney’s child and the attorneys he/she supervises do appear in the judge’s court. The judge asks whether he/she must disqualify him/herself when the court attorney’s child or an attorney he/she supervises appears in the judge’s court.


A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).


In Opinion 08-126, the Committee advised that a judge must disqualify him/herself, subject to remittal, when the judge's law clerk's spouse or the spouse's partners or associates appear in the judge's court and must insulate the law clerk from all cases in which the spouse's law firm appears (see Opinion 08-1261; 22 NYCRR 100.3[E][1]). Remittal is permitted in such cases "only where the judge discloses on the record the basis of his/her disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge's participation, all agree in writing or on the record that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate" (Opinion 08-126, citing 22 NYCRR 100.3[F]). Therefore, the inquiring judge must disqualify him/herself, subject to remittal, from presiding in cases where the court attorney’s child or an attorney that the court attorney’s child directly supervises appears (see Opinion 08-126). However, the judge may continue to preside if the judge believes that he/she can be impartial and is willing to do so, and the litigants remit the judge’s disqualification (see 22 NYCRR 100.3[F]). In any event, in both of these circumstances, the court attorney must be insulated from any involvement with any case in which his/her daughter either is the prosecutor or is the direct supervisor of the prosecutor.


The judge also asks whether his/her court attorney is disqualified from formally conferencing all child protective cases as is now required by “recently promulgated protocols.” However, because the question involves the ethical propriety of conduct by a non-judicial employee of the Unified Court System, it is beyond the Committee’s jurisdiction (see 22 NYCRR 101.1). The Committee suggests that the judge direct his/her court attorney to contact the Unified Court System’s ETHICS HELP LINE (1-888-28-ETHIC) for assistance.





       1Opinion 08-126 overruled prior Opinions 99-35 (Vol. XVII) and 03-30. In the former, the Committee had advised that a judge, whose law clerk is married to the County Attorney, need not recuse him/herself when the County Attorney or attorneys on the County Attorney's staff appear, but should disclose the relationship to all parties and their attorneys and insulate the law clerk from participation in the case. In the latter, the Committee had advised that a judge whose principal court attorney’s spouse is a director of a legal services corporation whose attorneys appear before the judge is not disqualified from presiding in those attorneys’ cases or required to disclose the relationship; but if the court attorney’s spouse was involved in a particular case, the judge must disclose the relationship and obtain the consent of the parties to preside, and the principal court attorney must be insulated from that case.