Ethics Opinion 079NEW YORK STATE BAR ASSOCIATION Professional Ethics Committee Opinion
Opinion #79 – 06/06/1968 (12-68)
appearance, conflict of interests, disqualification, judges
Topic: Judges – relationship with relative and former partners.
Digest: Judicial ethics – judges avoidance of impropriety in relationship with relatives and former partner.Canon: Judicial Ethics 4, 13, 26, 29A judge asks three questions,
QUESTION No. 1
May he continue to designate legal advertising in a local newspaper in which his son and son-in-law have or acquire a substantial ownership interest?
The Canons of Judicial Ethics take a strong position to the effect that a judge’s official conduct should not only be free from impropriety but also the appearance of impropriety. Canons 4 and 13 of the Canons of Judicial Ethics are applicable. Canon 13 states that a judge “should not suffer his conduct to justify the impression that he is affected by the kinship, rank, position or influence of any party or other person.” It is the opinion of the Committee that where a choice of newspapers exists, it is improper for a judge to order publication of legal notices in a newspaper in which members of his immediate family ate substantial stockholders.
QUESTION No. 2
The judge’s son and son-in-law are both attorneys in separate firms. May the judge sign orders to show cause for the firms in which his son and son-in-law are partners?
Several bar associations have taken the position that it is judicially improper for a judge to preside over a trial where near relatives, such as a son, is the attorney or trial counsel. (ABA 200, N.Y.City 456, N.Y.County 346. See also Canons 13 and 26 of Canons of Judicial Ethics; Drinker, Legal Ethic 72).It would seem that the basis of these opinions is that the judge should avoid situations which could give the impression that his decisions are influenced by favoritism. The same reasoning could be applied to the signing of ex parte orders for an attorney who is a near relative.It is, therefore, the opinion of the Committee that in the absence of extraordinary circumstances, it would be improper for a judge to sign orders to show cause for a firm in which his son or son-in-law is a partner.
QUESTION No. 3A
town attorney was a former partner and associate of the judge for more than 20 years prior to his ascent to the bench.May the judge now grant “Stays” in matters in which this attorney is counsel for the firm?
Apparently there is no generally accepted a judge from sitting in a case merely because rule which would preclude his former firm is counsel in such case. (Drinker, Legal Ethics 72, ABA Inf. 594.)However, a judge has the obligation to avoid the appearance of impropriety. Each judge, therefore, should decide for himself whether under the circumstances he should in conscience accept cases involving a former partner.It is the opinion of the Committee that he is not under an absolute obligation to disqualify himself under these circumstances.