Opinion 07-173

October 18, 2007

Please Note: "[F]or a period of one year after a law clerk leaves a judge’s employ, the judge must fully disclose the former relationship when the former law clerk’s law firm colleagues appear before the judge, but has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case" (see Opinion 14-27 [modifying Opinion 07-173]).
In addition, this opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         For a one year period after a law clerk leaves a judge’s employ, the judge should disclose his/her relationship with the former law clerk when the former law clerk appears in the judge’s court, and should recuse upon a party’s request. During the same period of time, the judge also should disclose his/her former law clerk’s business association with an attorney who appears in the judge’s court, and should recuse upon a party’s request.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 07-04; 04-35; 90-146 (Vol. VI).

Opinion:

         A judge whose former court attorney resided temporarily in the home of a defense attorney and now practices law with that attorney, asks about the ethical implications when either attorney appears in the judge’s court.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge, therefore, is disqualified in any proceeding where his/her impartiality might reasonably be questioned (see 100.3[E][1]).

         In Opinions 07-04 and 04-35, this Committee advised that for a one year period after a law clerk leaves a judge’s employ, the judge should disclose his/her relationship with the former law clerk when the former law clerk appears in the judge’s court, and should recuse upon a party’s request. The same applies to the judge in the present inquiry when his/her former law clerk appears before him/her.

         In Opinion 90-146 (Vol. VI), this Committee advised that a judge should disclose his/her law clerk’s business association with an attorney appearing in the judge’s court, and preside only upon the parties’ consent. In the Committee’s view, for a period of one year after the law clerk’s employment with the judge ends, a judge should follow the same procedure when, as is the case in the present inquiry, his/her former law clerk’s current law practice associate appears in the judge’s court.