October 26, 2011
Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”
This responds to your inquiry (11-106) asking whether you may preside over certain Family Court cases if your child is appointed to the position of part-time county attorney. In addition, you ask whether you may preside over other types of Family Court cases prosecuted by the county department of social services, which has no connection to the county attorney.
Pursuant to the Rules Governing Judicial Conduct, a judge must disqualify him/herself, subject to remittal, when a person within the fourth degree of relationship appears as a lawyer in the proceeding (see 22 NYCRR 100.3[E][e]). However, remittal is not available when a party is self-represented or if a matter is before the court ex-parte. Since there is only one part-time assistant to the county attorney, and he/she has the authority to appoint that sole part-time assistant, it is the Committee’s view that the same rules governing disqualification would apply to the part-time assistant as well. Accordingly, you must disqualify yourself from all cases in which the office of the county attorney appears as counsel, subject to remittal, should your child be appointed county attorney.
You indicate that there is no connection between the office of the county attorney and the county department of social services. Accordingly, there is no ethical prohibition to your presiding over those Family Court cases prosecuted by the county department of social services.
Enclosed, for your convenience, are Opinions 10-05 and 07-216 which address this issue.
Very truly yours,
George D. Marlow, Assoc.
Justice, Appellate Division,
First Dept. (Ret.)