September 10, 2015
Digest: Although a judge is disqualified, subject to remittal, when his/her uncle, aunt, niece, nephew, great-grandparent, or great-grandchild appears before the judge as an attorney, this obligation does not extend to the relative’s law firm colleagues. The judge may preside in contested or uncontested cases involving other attorneys from the law firm of a relative within the fourth degree but beyond the second degree of relationship, provided the judge can be fair and impartial; and may also appoint such attorneys as fiduciary, impartially and on the basis of merit. The judge has no affirmative duty to disclose the familial relationship in such matters.
Rules: 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(d)-(e); 100.3(F); Opinions 14-30; 13-132; 12-178; 11-43; 07-115/07-120; 06-111; 98-85; 94-01; 88-21.
A full-time judge has a relative within the fourth degree, but beyond the second degree of relationship1, who is “Of Counsel” to a law firm. He/she states the firm has open cases before the judge, some uncontested and some awaiting decision. He/she is confident he/she can be fair and impartial if other attorneys from the firm appear, and thus asks if he/she may preside in the firm’s cases, including uncontested ones. The judge also asks if he/she may appoint the relative’s law firm colleagues under Part 36.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must disqualify him/herself from a proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), including when the judge knows a person within the fourth degree of relationship to the judge or his/her spouse is a lawyer in a case before the judge (see 22 NYCRR 100.3[E][e]). Moreover, a judge must exercise the power of appointment impartially and on the basis of merit and must avoid nepotism and favoritism (see 22 NYCRR 100.3[C]).
The Committee has advised that a judge must disqualify him/herself if a fourth degree relative appears before the judge as an attorney, although such disqualification would be subject to remittal where permitted (see e.g. Joint Opinion 07-114/07-120 [judge’s cousin]; Opinion 98-85 [judge’s nephew]; 22 NYCRR 100.3[E][e]; 100.3[F]).
However, this obligation does not automatically extend to a relative’s law firm colleagues in every instance. In particular, the Committee has advised that a judge need not disqualify him/herself when other members of a law firm of the judge’s relative, within the fourth degree but beyond the second degree, appear before the judge, and the judge has no affirmative obligation to disclose the relationship (see Opinion 98-85 [judge’s nephew]).2 The same principle applies here, and the inquiring judge may therefore preside in contested or uncontested matters involving his/her relative’s law firm, provided the judge’s relative has not been involved, and further assuming the judge can be fair and impartial. Disclosure is not required.
Because the judge may preside, without disclosure, in cases involving partners and associates of the judge’s relative within the fourth but beyond the second degree, the Committee concludes the judge may likewise make Part 36 appointments to such attorneys (cf. Opinion 88-21 [appointment of fourth-degree relative’s colleagues]). Thus, the Rules Governing Judicial Conduct do not bar the inquiring judge from appointing an eligible attorney to a fiduciary or other appointive position “impartially and on the basis of merit” (22 NYCRR 100.3[C]; Opinion 14-30), merely because the attorney is a law firm colleague of the judge’s relative within the fourth degree but beyond the second degree of relationship (see Opinion 88-21).
Finally, the Committee notes that, over a quarter-century ago, in its first twelve months of operation, the Committee required a judge whose first cousin’s law firm was appearing before the judge to “make it clear ... that his cousin may not participate in the fees which his cousin’s partners or associates receive” from cases before the judge as attorneys or appointed fiduciaries (Opinion 88-21). However, the Committee appears to have quietly abandoned this requirement in subsequent opinions involving relatives of a similar degree of relationship, as it does not appear in Opinion 94-01 (judge’s cousin’s law firm) or Opinion 98-85 (judge’s nephew’s law firm). On further consideration, the Committee believes that it is unduly intrusive and unnecessary for a judge to attempt to impose such a restriction on the law firms of his/her relatives, such as nephews, nieces, uncles, aunts, great-grandparents, great-grand-children, and cousins. Accordingly, Opinion 88-21 is hereby modified to be consistent with this view.3
1 A relative within the fourth degree but beyond the second degree of relationship includes an uncle, aunt, niece, nephew, great-grandparent, great-grandchild, or cousin (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see Opinions 13-132 n 1; 12-178 n 1; 22 NYCRR 100.3[E][d]-[e]).
2 The same principle applies to the law firm colleagues of a judge’s fourth-degree relatives, such as a first cousin by blood or marriage (see Opinion 94-01). By contrast, “[w]here the relationship between the judge and the lawyer is within the second-degree of consanguinity, denoting a more intimate and significant family connection,” the judge is disqualified, subject to remittal, when the relative’s law firm colleagues appear (see Opinion 06-111).
3 Opinion 11-43 (which involved the law firm of a judge’s spouse) repeated this limitation, without criticism, when describing and distinguishing Opinion 88-21