January 30, 2020
Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).
Digest: A judge is not disqualified from presiding in cases involving the attorney who employs the court attorney’s first-degree relative as a secretary, provided the judge can be fair and impartial and no party is appearing without counsel, but the judge must disclose the relationship and insulate the court attorney from such cases.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(E)(1); Opinions 14-169; 13-26; 10-123.
A judge’s court attorney’s first-degree relative works as a secretary for a local attorney.1 The judge asks about his/her ethical obligations in matters where the attorney appears.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14).
We have said a judge need not disqualify him/herself when a law firm that employs the judge’s court clerk’s non-lawyer relative appears in the judge’s court, but the judge should insulate the court clerk from any matter in which the firm is involved (see Opinion 10-123). Similarly, a judge may preside in matters involving the law firm that employs the spouse and first-degree relative of a principal court attorney who works exclusively for the judge, but must insulate the court attorney from the firm’s cases and disclose the insulation (see Opinion 14-169 [noting the court attorney’s spouse is a paralegal, while his/her first-degree relative is an attorney]).
The same principles apply here. This judge is not disqualified from presiding in cases involving the attorney who employs the court attorney’s first-degree relative, provided he/she can be fair and impartial (see Opinions 10-123; 13-26; 14-169). However, the judge must insulate the court attorney from such matters and disclose the relationship and insulation (id.). Because disclosure is mandatory, the judge must disqualify him/herself if any party appears without representation or if he/she does not wish to make full disclosure (Opinion 14-169). Otherwise, after disclosure, the judge is the sole arbiter of recusal, even if a party objects to the judge’s continued participation in the case.
1 A first-degree relative includes the parent or child of the judge or his/her spouse, or the spouse of such person.