If a judge is disqualified because a relative or the relative's law firm appears before the judge, can the judge accept the parties' remittal and stay on the case?

Plain-English summary

A judge sitting on a multi-judge term in New York Supreme Court asked the committee about two situations. In the first, the stepdaughter of the judge's uncle appeared as a lawyer before him. The committee explained that a child of the judge's uncle is a cousin and so a relative within the fourth degree, and that the relationship by marriage to a stepdaughter still falls within that degree. Canon 3(E)(1)(e) of the Code of Judicial Conduct therefore disqualified the judge. But Canon 3(F) permits remittal: once the judge discloses the basis for disqualification on the record and the parties, without the judge's participation, all agree the judge should not be disqualified, the judge who believes he or she can be impartial may continue to sit.

The committee used the inquiry to clarify its earlier opinions. In N.Y. State 548 (1983) and 574 (1986) it had said that on a multi-judge court a judge should often recuse "as a matter of course." The committee explained it had never intended that a judge who chose recusal on such a court could not then accept remittal. Even in the cases where the Code mandates recusal, it permits remittal where the judge believes he or she will be impartial, and the committee saw no reason that option should be unavailable in non-enumerated cases. The size of the court is one factor in deciding both whether disqualification is required and whether to accept remittal, but that factor alone is not determinative.

In the second situation, partners or associates of the stepdaughter's firm, but not the stepdaughter herself, appeared before the judge. Canon 3(E)(1)(e) mandates disqualification only where the relative "is acting as a lawyer in the proceeding," so the committee assumed the stepdaughter had no involvement. Whether the appearance of her firm's other lawyers required recusal then turned on the general standard of Canon 3(E)(1): whether the judge's impartiality might reasonably be questioned. The committee identified the nature of the lawyer (public or private), the nature of the fee (contingent or hourly), the size of the firm, and the size of the community as factors, none determinative. It illustrated with two poles: an associate in a west-coast office of a 1,000-lawyer firm appearing in a contingency matter while the judge's cousin is an associate elsewhere in the firm would be unlikely to raise a reasonable question, while a partner of the judge's brother in a two-partner small-town firm likely would. Where recusal is required, remittal under Canon 3(F) remains available on the same disclosure-and-consent terms.

Currency note

This opinion was issued in 1998 and construes the Code of Judicial Conduct (22 NYCRR Part 100) as it then stood. New York has since revised its Rules Governing Judicial Conduct, and the New York State Bar replaced its lawyer Code of Professional Responsibility with the Rules of Professional Conduct in 2009. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Is a judge disqualified when a cousin or a cousin's stepchild appears as a lawyer?

A: The opinion concluded yes. A child of the judge's uncle is a fourth-degree relative, including a stepchild related by marriage, so Canon 3(E)(1)(e) disqualified the judge when that person acted as a lawyer in the proceeding.

Q: Can the parties waive the disqualification so the judge stays on?

A: The opinion concluded yes. Under Canon 3(F), once the judge discloses the basis for disqualification on the record and the parties agree without the judge's participation, a judge who believes he or she can be impartial may continue to sit.

Q: Does sitting on a large multi-judge court mean the judge cannot accept remittal?

A: The opinion concluded no. Court size is one factor in the recusal and remittal decisions, but it does not by itself bar a judge from accepting a remittal offered by the parties.

Q: Is the judge automatically disqualified when the relative's law partner, rather than the relative, appears?

A: The opinion concluded no. Disqualification then depends on whether the judge's impartiality might reasonably be questioned, weighing the type of lawyer and fee, the firm's size, and the community's size, with no single factor controlling.

Background and rules framework

The opinion interpreted Canon 3(E)(1) (disqualification where impartiality might reasonably be questioned, including when a fourth-degree relative acts as a lawyer) and Canon 3(F) (remittal of disqualification) of New York's Code of Judicial Conduct, codified at 22 NYCRR 100.3. The modern analogue is Rule 2.11 of the ABA Model Code of Judicial Conduct, which addresses judicial disqualification and remittal. The opinion modifies N.Y. State 548 (1988) and 673 (1995).

Citations and references

Rules of Judicial Conduct:

• ABA Model Code of Judicial Conduct Rule 2.11 (disqualification; remittal)
• NY Code of Judicial Conduct Canon 3(E)(1), Canon 3(F); 22 NYCRR 100.3(E)(1), 100.3(F)

Cases:

• In re Orellana v. Escalante, 228 A.D.2d 63 (4th Dep't 1997), degree of relationship by affinity
• In re Petition of United States, 418 F.2d 264 (1st Cir. 1969), fourth-degree relationship

Other opinions cited:

• N.Y. State 548 (1983) and 574 (1986): recusal on multi-judge courts and availability of remittal
• N.Y. State 673 (1995): disqualification where a lawyer represented the judge's relative
• N.Y. Advisory Committee on Judicial Ethics Ops. 87-3, 88-101/102, 89-112, 90-44: relatives' firms and government lawyers

See also

• NY State Bar Op. 701: Part-time judge's partners and co-counsel
• NY State Bar Op. 725: Assistant DA appearing before a sibling Town Justice
• NY State Bar Op. 1243: Public defender related to a part-time town court judge

Source

• Landing page: https://nysba.org/opinion-703/