Opinion 02-112

October 24, 2002

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.

Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.

Digest:          (1) A judge need not disqualify him/herself in a proceeding involving a law firm which previously employed the judge’s law clerk and currently employs the law clerk’s spouse, as long as the judge believes that he/she can act impartially, but the judge should disclose the relationship and insulate the law clerk from involvement in matters involving that firm. (2) In matters where the law clerk was involved with the case while employed at the law firm, the judge should disclose that fact, insulate the law clerk from involvement in the case and recuse him/herself, if recusal is requested by either party.

Rules:          22 NYCRR 100.3(E)(1); Opinions 99-35 (Vol. XVII); 99-48 (Vol. XVII); 99-91; 00-66.

Opinion:

         A judge has recently appointed a law clerk whose spouse is a salaried associate at a law firm which practices in the judge’s court. The law clerk had also been employed at the law firm for approximately two years but had resigned more than three years prior to this inquiry. The judge seeks the guidance of this Committee regarding his/her obligation, if any, to disqualify him/herself in matters involving the law firm.

         The Rules Governing Judicial Conduct require that a judge disqualify himself/herself in any proceeding in which the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). This Committee has previously stated that a judge is not disqualified solely because a law clerk or court attorney was previously employed at a law firm that appears before the judge, or whose spouse in employed at a law firm that appears before the judge as long as the judge believes that he/she can act impartially.

         The recommended procedure, in these circumstances, is for the judge to disclose the law clerk or court attorney’s relationship with the law firm and insulate that staff member from involvement in the case. Opinions 99-35 (Vol. XVII); 99-91; 00-66. However, in situations where the law clerk or court attorney was actually involved with the case while employed at the law firm, the judge should disclose that staff member’s relationship with the law firm, insulate that staff member from involvement in the case and recuse him/herself if requested by either party. Opinion 99-48 (Vol. XVII).

         In the instant matter, however, the judge states that insulation of the law clerk would be “impractical” because the law clerk is the only law clerk on the judge’s staff. In those circumstances, we suggest that the judge contact the appropriate Administrative Judge or other judges and request the assistance of another judge’s law clerk in the matter in which the inquiring judge’s law clerk is not allowed to be involved.