Can a lawyer practice in a court where his brother is the judge?

Plain-English summary

The committee was asked whether a lawyer may handle matters in a court where his brother sits as a judge. It began by noting that statutes such as Sections 471 and 472 of the New York Judiciary Law prohibit certain lawyers from practicing in a court because of specified practice or personal relationships with a judge. The scope of those statutory prohibitions, the committee said, raises questions of law on which it expressed no opinion, though any court appearance forbidden by law would also violate the Code (EC 1-5; DR 7-102(A)(8)).

Turning to ethics, the committee explained that having a judge rule on a matter in which a brother or other close relative is a party or counsel does not promote public confidence in the impartiality of the judicial system. The Code of Judicial Conduct (effective March 1973) and the Judicial Conference Rules (effective in New York in January 1974) made disqualification mandatory whenever a close relative serves as counsel, absent remittal under Judicial Canon 3D (Judicial Canon 3C(1)(d)(ii); 22 NYCRR 33.3).

It did not follow, the committee held, that the lawyer relative must forgo all practice in that court absent a specific legal prohibition such as Judiciary Law Section 472. Drawing on ABA 200 (1940) and later ABA informal opinions, it concluded that the responsibility to step aside falls on the judge, not on the lawyer relative. The committee added one caveat: special circumstances could make it improper under Canon 9 and EC 9-4 and 9-6 for the lawyer to accept a retainer, for example, if he had grounds to suspect the client chose him to gain a hoped-for advantage from the relationship, such as to compel the judge's disqualification.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009, and the judicial-disqualification rules it cites have since been superseded by later versions of New York's judicial-conduct rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer give up cases in a court where a sibling is a judge?

A: Under this opinion, no, absent a statute that forbids it or special circumstances; the burden to step aside normally falls on the judge.

Q: Who is disqualified when a close relative appears as counsel?

A: Per the opinion, the judge is mandatorily disqualified when a close relative serves as counsel, absent remittal under Judicial Canon 3D; the lawyer relative is not the one who steps aside.

Q: When could it be improper for the lawyer to take the case?

A: The committee identified special circumstances, such as the lawyer having grounds to suspect the client retained him to exploit the relationship (for example, to force the judge's recusal), in which event Canon 9 and EC 9-4 and 9-6 would bar the retainer.

Background and rules framework

The opinion turned on New York's judicial-disqualification rules (Judicial Canon 3C(1)(d)(ii) and 3D) and on Canon 9's appearance-of-impropriety standard for the lawyer, while expressly declining to interpret the practice-prohibition statutes (Judiciary Law Sections 471, 472). Because the constraint runs primarily to the judge's recusal and to a statute, there is no direct Model Rule analogue for the lawyer's conduct; the current New York counterpart is the judicial-conduct rule on disqualification when a relative appears as counsel.

Citations and references

Rules of Professional Conduct:

• NY Canon 9; EC 1-5, 9-4, 9-6; DR 7-102(A)(8)
• NY Code of Judicial Conduct Canon 3C(1)(d)(ii), 3D (judicial disqualification)

Statutes:

• N.Y. Judiciary Law Sections 471, 472 (practice restrictions tied to relationship with a judge; scope not opined on)

Other opinions cited:

• ABA 200 (1940): the judge, not the lawyer relative, is the one to be disqualified
• ABA Inf. 449 (1961); ABA Inf. 1260: same principle under the Code of Judicial Conduct

See also

• NY State Bar Op. 378: Defending criminal cases where spouse is a probation officer
• NY State Bar Op. 409: Spouses as ADA and assistant public defender
• NY State Bar Op. 380: Arbitrator practicing before the same small claims part

Source

• Landing page: https://nysba.org/opinion-384/