May 5, 2022
Digest: A judge may preside in litigation involving a large national retail chain, notwithstanding that the judge’s non-lawyer relative has an entry-level management position at one retail store in this chain, unless the judge’s relative is personally involved in the matter.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(d)(i)-(iii); 100.3(E)(1)(e); 100.3(E)(1)(e)(i); 100.3(F); Opinions 16-44; 15-150; 15-40; 12-105; 00-43; 99-87; 88-105; People v Moreno, 70 NY2d 403 (1987).
The inquiring judge has been asked to preside in a high-profile litigation involving a large company that owns and operates a national retail chain.1 The allegations focus on a specialized department of the company. The judge’s first-degree relative, a non-attorney, is employed by this company at one retail store as a shift supervisor.2 The judge’s relative is not a company officer or director, has no litigation-related duties, and does not supervise any employees who work in the specialized department at issue. On these facts, the judge asks if it is ethically permissible to accept the assignment.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify in statutorily required circumstances (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]). For example, a judge must disqualify if the judge knows that a relative within the sixth degree of relationship “is a party to the proceeding” (22 NYCRR 100.3[E][d][i]), “is an officer, director or trustee of a party” (22 NYCRR 100.3[E][d][ii]), or “has an interest that could be substantially affected by the proceeding” (22 NYCRR 100.3[E][d][iii]). Likewise, if a fourth-degree relative “is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][e]) or “is likely to be a material witness” in it (id.). Conversely, if disqualification is not mandatory under objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 ).
In general, a judge is disqualified, subject to remittal, from presiding in a matter when their non-lawyer first-degree relative’s private sector employer is a party (see e.g. Opinions 12-105 [local manufactured home park employs judge’s adult child in the maintenance department]; 15-40 [regional chamber of commerce employs judge’s spouse as director]; 99-87 [private law firm employs judge’s spouse in a paralegal/clerical position]; 88-105 [bank employs judge’s spouse as secretary]).
However, “additional fact-specific considerations” may apply in some circumstances (Opinion 15-150). For example, a judge may preside in cases involving hospitals and insurance companies, even though their spouse “is a salaried insurance broker employed by a company that places insurance on behalf of the employees of various hospitals” pursuant to contracts with the individual hospitals (see Opinion 00-43). We noted the judge’s spouse was “a salaried employee” with no economic interest in any party to a negligence case, and the “outcome of any negligence case against one of the hospitals would not affect the spouse” in any way (id.). We also advised that a judge whose non-lawyer spouse holds “a mid-level position with no litigation responsibilities” at a global insurance company may preside in cases involving their spouse’s employer, “unless the spouse is personally involved in the matter” (Opinion 16-44).
Here, the judge’s non-lawyer relative has no litigation-related duties and is unlikely to have any direct or indirect involvement with any facts or legal issues that will come before the judge in the course of the litigation. It is thus highly unlikely the judge’s relative will be a material witness (see 22 NYCRR 100.3[E][e]). As a low-level managerial employee at a single retail store of a very large national chain, with no direct or supervisory involvement in the specialized department at issue, and no involvement in corporate governance, we believe the relative also has no substantial interest in the outcome of the litigation before the judge (cf. Opinions 16-44; 15-150; 00-43; 22 NYCRR 100.3[E][d][ii]-[iii]). On these facts, the judge’s impartiality cannot be “reasonably questioned” (22 NYCRR 100.3[E]) merely because the judge’s relative’s employer is a party to the proceedings. Thus, neither disclosure nor disqualification is required.
Of course, if the judge learns this relative is personally involved in a particular case, the judge must disqualify. Although in some circumstances the disqualification may be subject to remittal after full disclosure on the record, we note that “the judge must disqualify him/herself without the possibility of remittal if” a relative within the second degree of relationship is likely to be a material witness in the proceeding and “personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][e][i]; 100.3[F]).
1 The company has thousands of stores nationwide, and hundreds of thousands of employees. Its annual revenues are in the billions.
2 First-degree relatives include the parent or child of the judge or the judge’s spouse, or the spouse of such person.