The New York Advisory Committee on Judicial Ethics has issued an opinion addressing the propriety of a town or village justice presiding over cases prosecuted by an assistant district attorney who is the second cousin of the judge’s court clerk.
The Committee concluded that the judge is not required to recuse themselves from such cases, nor is it necessary to insulate the court clerk from these matters. The opinion, designated as Opinion 25-123, provides guidance on judicial conduct in situations involving familial relationships between court staff and prosecuting attorneys.
The inquiry stemmed from a town or village justice who sought clarification on whether it was ethically permissible to preside over cases prosecuted by an assistant district attorney who is the second cousin of the judge’s court clerk. The judge stated that they do not personally know the assistant district attorney and are confident in their ability to remain fair and impartial in these cases.
In its analysis, the Committee referenced several key provisions of the Rules Governing Judicial Conduct. These include the overarching principle that a judge must avoid even the appearance of impropriety and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality, as outlined in 22 NYCRR 100.2 and 100.2(A). The Committee also emphasized that a judge must not allow familial or social relationships to influence their judicial conduct or judgment, as stated in 22 NYCRR 100.2(B). Additionally, a judge must disqualify themselves from proceedings where their impartiality might reasonably be questioned, as per 22 NYCRR 100.3(E)(1), or in other specific circumstances required by law, including Judiciary Law § 14.
The Committee noted that while the ethics rules do not mandate disqualification based solely on a court employee’s familial relationships, there may be circumstances where insulating the court employee from matters involving their relatives is necessary. However, the Committee turned to Section 100.3(E)(1)(e), which mandates disqualification if the judge knows that they, their spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding.
Applying this provision by analogy, the Committee determined that because the relationship between the court clerk and the assistant district attorney is that of second cousins, which falls within the sixth degree of consanguinity, it is beyond the fourth degree of relationship that would necessitate disqualification. Citing prior opinions, the Committee noted that a judge need not recuse themselves when a staff member of the District Attorney, who is the judge’s first cousin once removed, appears before the judge as counsel, provided the judge can be fair and impartial (see Opinion 07-06).
Therefore, the Committee concluded that the inquiring judge is not required to insulate the court clerk or disclose the relationship and may preside over the cases in question without any need for recusal or special measures.
