December 28, 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 (11-131) asking about your ethical obligations regarding presiding over criminal matters prosecuted by the District Attorney’s Office in light of your child’s recent employment as an assistant district attorney in the same large urban county in which you preside.
Pursuant to the Rules Governing Judicial Conduct, you must disqualify yourself when your child appears in your court or had some involvement in a matter pending before you (see 22 NYCRR 100.3[E][e]), subject to remittal (see 22 NYCRR 100.3[F]). However, the Committee previously has advised that where a judge’s relative is an attorney for a large public law office such as a District Attorney’s, the judge need not disqualify him/herself nor disclose that his/her relative is employed as an attorney with the same office when other attorneys from that office appear in the judge’s court, so long as the judge’s relative had no involvement in the matter (see e.g. Opinions 96-42 [Vol. XIV] [judge’s children are assistant district attorneys in the large urban county where the judge sits; 89-127 [Vol. IV] [judge’s child is a part-time assistant district attorney (one of ten) in the county where the judge sits]).
Enclosed, for your convenience, are Opinions 07-216; 96-42 and 89-127 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)