Can an assistant district attorney prosecute a case before a Town Justice who is the prosecutor's sibling, and can other lawyers in the office appear before that judge?

Plain-English summary

The committee addressed whether an assistant district attorney may appear before a Town Justice who is a sibling, and whether other attorneys in the same office may do so. It began with the Code of Judicial Conduct: under CJC 3(E)(1)(e), codified at 22 N.Y.C.R.R. 100.3, a judge must disqualify where the judge knows a person within the fourth degree of relationship is acting as a lawyer in the proceeding. A Town Justice therefore could not preside over a case prosecuted by a sibling assistant DA.

The committee held that if the judge does not disqualify on the judge's own initiative, the sibling assistant DA may not proceed. Although recusal is primarily the judge's responsibility, lawyers have an obligation to the justice system to take steps to prevent a judge from presiding over a case the judge should not retain (citing N.Y. State 548 (1983) and N.Y. State 602 (1988)). The committee stressed that a government prosecutor, charged with seeking justice, has an even greater obligation. The assistant DA had to alert the Town Justice to the duty to recuse and, if the judge refused, take other steps such as securing a substitute attorney or formally seeking recusal.

The committee also concluded the remittal procedure in CJC 3(F), by which parties can agree on the record to let a disqualified judge preside, was not available here. Because of the heightened public interest in the fairness and apparent fairness of a criminal prosecution, the public might suspect the prosecutor's office used its power to obtain the defendant's consent, or that the judge would favor the prosecution because of the family tie. Quoting N.Y. State 660 (1993), the committee said a "scintilla of partiality" that private parties might waive in other contexts is intolerably suspect in the criminal justice system.

Finally, the committee held that other members of the DA's office may appear before the Town Justice. The CJC commentary provides that a lawyer's affiliation with a firm where a judge's relative also works does not by itself disqualify the judge; disqualification is required only if the judge's impartiality might reasonably be questioned or the relative has an interest substantially affected by the outcome. An assistant DA ordinarily has no such interest in a prosecution brought by a different lawyer in the office, so the Town Justice could preside over those cases.

Currency note

This opinion was issued in 2000, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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: Can an assistant DA prosecute before a Town Justice who is a sibling?

A: No. The opinion concluded the Town Justice must disqualify under CJC 3(E)(1)(e), and if the judge does not, the sibling assistant DA may not proceed and must take steps to secure recusal.

Q: Can the parties consent to let the related judge preside anyway?

A: The opinion concluded the CJC 3(F) remittal procedure is unavailable in a criminal prosecution, because the public interest in the fairness and apparent fairness of criminal proceedings makes even a waivable appearance of partiality intolerably suspect.

Q: Can other lawyers in the DA's office appear before that judge?

A: Yes. The opinion concluded that, unless the judge's impartiality might reasonably be questioned, the Town Justice may preside over cases prosecuted by a different lawyer in the office, because an assistant DA ordinarily has no interest affected by a colleague's prosecution.

Background and rules framework

The opinion turned primarily on the Code of Judicial Conduct (CJC Canon 3(E)(1)(e) on disqualification for a related lawyer, and 3(F) on remittal), with the lawyer's duties drawn from New York's former Code of Professional Responsibility (DR 1-103(B); DR 9-101(C); EC 7-13, 7-39, 9-2). The lawyer-side obligation not to imply influence over a judge corresponds to Model Rule 8.4. New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 8.4 (misconduct; stating or implying ability to influence a tribunal)
• NY DR 1-103(B); DR 9-101(C); EC 7-13, 7-39, 9-2
• Code of Judicial Conduct, Canon 3(E)(1)(e), 3(F) (22 N.Y.C.R.R. 100.3)

Other opinions cited:

• N.Y. State 602 (1988): lawyers must take steps to prevent a judge from presiding over a case the judge should not retain
• N.Y. State 660 (1993): a scintilla of partiality is intolerably suspect in the criminal justice system
• N.Y. State 548 (1983): recusal is primarily the judge's responsibility
• N.Y. State 703 (1998) and 574 (1986): factors a judge may weigh in deciding whether to accept remittal

See also

• NY State Bar Op. 1243: Public defender related to a part-time town court judge
• NY State Bar Op. 788: Part-time prosecutor representing a defendant in a civil matter
• NY State Bar Op. 811: Public defender conflicts of interest

Source

• Landing page: https://nysba.org/opinion-725/