Is it a conflict for a municipal prosecutor to serve in a court where the judge is his second cousin?

Plain-English summary

The inquirer was the prosecutor in a municipal court where the sitting judge was his second cousin, and asked whether this created a conflict requiring one of them to disqualify himself. The Committee analyzed the judicial-disqualification rules: R. 1:12-1 governs a judge's disqualification on his own motion based on family relationship, and R. 1:12-1(b) requires disqualification where the judge is, by blood or marriage, a first cousin of or more closely related to any attorney in the action.

Because the prosecutor was only a second cousin, he fell outside subsection (b), so the relationship could not require the judge's disqualification. The Committee cited Clawans v. Waugh for the principle that grounds for disqualifying a judge are limited to those authorized by law, and courts may not add others. It also noted the rule is broader than the disqualification statute (N.J.S.A. 2A:15-49).

The Committee concluded that since the rule does not disqualify the inquirer, there is no reason he cannot continue as prosecutor in the municipal court where his second cousin is the judge.

Currency note

This opinion was issued in 1989, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and the court rules cited may have changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Does a family relationship between a prosecutor and the judge automatically create a conflict?

A: Per the opinion, no. It depends on the degree of relationship: under R. 1:12-1(b), only a first-cousin-or-closer relationship to an attorney requires the judge to disqualify himself.

Q: Can a court add other grounds for disqualifying a judge?

A: The Committee quoted Clawans v. Waugh that "it is not for the courts to add other grounds of disqualification" beyond those authorized by law.

Background and rules framework

The opinion construes the New Jersey court rules on judicial disqualification, R. 1:12-1 (disqualification on the judge's own motion) and R. 1:12-2 (on a party's motion), and the related statute N.J.S.A. 2A:15-49. The dispositive provision is R. 1:12-1(b), which keys disqualification to a first-cousin-or-closer relationship between the judge and an attorney in the matter.

Citations and references

Court Rules:

• R. 1:12-1 (disqualification of judges on their own motion; subsection (b), relationship to an attorney)
• R. 1:12-2 (disqualification on a party's motion)

Statutes:

• N.J.S.A. 2A:15-49 (statutory grounds for judicial disqualification)

Cases:

• Clawans v. Waugh, 10 N.J. Super. 605 (Cty. Ct. 1951), grounds for disqualification are limited to those authorized by law

See also

• NJ ACPE Op. 675: Client Before a Board Where the Lawyer's Father Is a Non-Lawyer Member
• NJ ACPE Op. 622: County Counsel Appearing Before Local Boards Where His Father Is a Committeeman

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp627-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

123 N.J.L.J. 991, April 20, 1989

OPINION 627

Conflict of Interest: Second Cousin of Municipal Court Judge Accepting Position as Prosecutor in same Municipality

The inquirer is the prosecutor in a municipal court where the sitting judge is his second cousin. He asks whether this presents a conflict, thus requiring one or the other to disqualify himself.

R. 1:12-1 sets forth the basis for disqualification of judges on their own motion based upon family relationship. R. 1:12-2 provides for disqualification on the motion of a party. This we are not concerned here. R. 1:12-1(a) requires a judge to disqualify himself on his own motion if he is by blood or marriage a second cousin of, or is more closely related to, any party to the action. Subsection (b) of the rule provides for disqualification if the judge is by blood or marriage a first cousin or is more closely related to any attorney in the action.

The inquirer is in the category referred to in subsection (b), but since he is not a first cousin this could not require disqualification of the judge. In the case of Clawans v. Waugh, 10 N.J. Super. 605 (Cty. Ct. 1951) it was held that in order to disqualify the judge there must exist a ground authorized by law and "it is not for the courts to add other grounds of disqualification." Id. at 612, quoting 48 C.J.S. 77, Judges. The court went on to say that where the reasons for disqualification are set out in a constitution or statute (see N.J.S.A. 2A:15-49), such provisions are exclusive. The cited rule is broader than the statute and certainly the ruling in Clawans will apply.

Since the cited rule clearly does not disqualify the inquirer, there is no reasons why he cannot continue as prosecutor in the municipal court in which his second cousin is the municipal judge.