Opinion 26-23

March 26, 2026

Digest:   A judge whose court clerk is a second-degree relative of the District Attorney must disclose the relationship and insulate the clerk from all criminal matters.

Rules:    22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(e); 100.3(E)(1)(e)(i)-(ii); 100.3(F); Opinions 25-123; 24-179; 23-80; 20-82/20-86; 20-26; 17-65; 14-171.

Opinion: 

          The inquiring full-time judge handles “primarily criminal cases.” The judge has been assigned a court clerk who is a second-degree relative of the county’s District Attorney.  The clerk is a court system employee assigned to the judge’s courtroom, rather than a personal appointee or member of the judge’s chamber staff.  The judge asks if disclosure and/or insulation is required in all criminal cases or only when the District Attorney personally appears, and whether remittal may be available.

          A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  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 in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).  For example, a judge must disqualify when he/she knows that his/her fourth-degree relative by blood or marriage “is acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]).  Where the judge knows the relationship to be within the second degree, (i) the judge must disqualify him/herself without the possibility of remittal if such person personally appears in the courtroom during the proceeding or is likely to do so, but (ii) may permit remittal of disqualification provided such person remains permanently absent from the courtroom (id.).

          Where a judge’s staff member has a conflict, “it is ordinarily sufficient to insulate the staff member and disclose the insulation” (Opinion 25-123 [citation omitted]).  Thus, while 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” by analogy to the provisions applicable to judges (id.). 

          This applies to “pool” court attorneys as well, who are not personally appointed or even assigned to work exclusively with one judge, but instead perform research and writing for all judges in the court (see Opinion 24-179).  Where a pool court attorney is related by blood or marriage within the fourth degree to the county’s District Attorney, we said the court attorney “must be insulated from all criminal matters” (id.).  However, the insulation “may be remitted if the judge makes full disclosure of the basis for the court attorney’s insulation on the record, the parties and their counsel affirmatively consent to remit without participation by the court, and the judge is satisfied the court attorney will be fair and impartial” (id.).

          We have recognized that the relationship between a judge and a court clerk is “decidedly less close” than between a judge and his/her personal appointees (Opinion 23-80).  Nonetheless, we have advised that a court clerk must be insulated from matters involving his/her close relatives (see Opinions 17-65 [court clerk whose third-degree relative is the village police chief must be insulated from all matters involving the police department]; 14-171 [court clerk whose second-degree relative is an assistant public defender must be insulated from his/her relative’s cases]). 

          Accordingly, we conclude that a court clerk who is related within the second degree of relationship to the county’s District Attorney must be insulated from all criminal matters.

          The insulation may not be remitted in matters where the District Attorney personally appears (cf. 22 NYCRR 100.3[E][1][e][i]; 100.3[F]), but may be subject to remittal in matters handled exclusively by assistant district attorneys (cf. 22 NYCRR 100.3[E][1][e][ii]).  As a reminder, remittal of insulation involves a multi-step process: (1) the judge makes full disclosure of the basis for the insulation on the record, (2) the parties and their counsel, without participation by the judge, all affirmatively agree that the court clerk need not be insulated, and (3) the judge is satisfied the court clerk will discharge his/her responsibilities fairly and impartially (see Opinions 24-179; 20-26 [noting that the agreement should be incorporated into the record]).  We note that every criminal defendant must have an opportunity to decide after full disclosure (see e.g. Opinions 20-82/20-86; 20-26). 

          If it proves impracticable for the inquiring judge, who is assigned primarily to criminal cases, to insulate the court clerk from all criminal matters or secure remittal, rendering the clerk incapable of performing his/her duties, the clerk will be unable to remain assigned to this judge (see Opinion 17-65).