Opinion 00-66

September 14, 2000

NOTE: This opinion has been modified by Joint Opinion 07-105/07-119 to the extent it is inconsistent or silent on the topic of recusal.

Digest:         (1) A judge may preside over criminal cases where the judge's law clerk was a former assistant district attorney, but where the law clerk had been previously involved in a case now before the judge there should be disclosure by the judge, and insulation of the law clerk. (2) A county court judge serving pursuant to an interim appointment should not hire as law clerk an assistant district attorney who would be on a leave of absence from the District Attorney's office pending the outcome of the election.

Rule:            22 NYCRR 100.3(E)(1);

Opinion:        93-132 (Vol. XI).

Opinion:

         A newly-appointed County Court judge (who intends to run for a full term in November) inquires as to whether the judge may hire, as law clerk, a presently employed full-time assistant district attorney from the same county. The inquiry asks whether the status of the ADA in a "leave of absence" posture pending the outcome of the November election is permissible.

         Section 100.3(E)(1) of the Rules Governing Judicial Conduct states that "A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ." We are of the view that the hiring of someone who is on leave of absence from the District Attorney's office is improper. A continuing official connection with the prosecutor's office is clearly incompatible with maintaining the appearance of judicial impartiality.

         Should the judge win in November, it is the Committee's opinion that the law clerk's former position as an assistant district attorney does not require the judge's recusal in criminal cases. However, it is the Committee's view that in cases in which the law clerk was personally involved there should be full disclosure by the judge and insulation of the law clerk.