Opinion 25-123

September 10, 2025

Digest: A judge may preside in matters prosecuted by an assistant district attorney who is the second cousin of the judge’s court clerk, and need not insulate the court clerk from such matters.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); Opinions 24-179; 22-16; 22-10; 09-33; 07-06.

Opinion: 

          The inquiring town or village justice asks if he/she may preside in matters that are being prosecuted in whole or in part by an assistant district attorney who is the second cousin of the judge’s court clerk.  The judge does not personally know the assistant district attorney in question and is confident he/she can be fair and impartial in such matters.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and 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 not allow family, social, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding where “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14).

           Where a judge’s staff member has a conflict, “it is ordinarily sufficient to insulate the staff member and disclose the insulation” (Opinion 22-16 [citation omitted]).  Thus, although the ethics rules do not require a judge to disqualify in a matter based on a court employee’s familial relationships, we may require a judge to insulate the court employee from matters involving his/her own relatives in analogous circumstances (see e.g. Opinion 24-179).

          Accordingly, we turn initially to Section 100.3(E)(1)(e), which requires a judge to disqualify in a proceeding in which the “judge knows that the judge or the judge’s spouse, or a person known by the judge to be within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]).  Applying that provision, we said a judge need not disclose nor exercise recusal when any staff member of the District Attorney, who is the judge’s first cousin once removed, appears before the judge as counsel, provided the judge can be fair and impartial (see Opinion 07-06).  This was because the District Attorney was the judge’s fifth-degree relative, and, therefore, beyond the kinship which requires disqualification under the Rules (id.).  We applied the same standard where the judge’s attorney relative was the Public Defender or a private attorney, as long as the relationship was beyond the fourth degree of relationship by blood or marriage (see Opinions 22-10; 09-33).

          Hence, by analogy, we conclude the inquiring judge need not insulate the court clerk or disclose the relationship, as the relationship between the court clerk and the assistant district attorney as second cousins is in the sixth degree of consanguinity and thus beyond the fourth degree of relationship.  Accordingly, the judge may preside without insulating the court clerk or making any disclosure.