Opinion 07-174

October 18, 2007

Digest:         In a large urban county, it is discretionary for a criminal court judge to disclose that the judge’s court attorney, who is the judge’s personal appointee, has applied for employment with a district attorney’s office that is staffed by hundreds of assistant district attorneys, or to insulate his/her court attorney from all matters the district attorney’s office prosecutes.

Rules:          22 NYCRR 100.2; 100.3(E)(1); Joint Opinion 07-87/95; Opinion s 97-82 (Vol. XVI); 97-39 (Vol. XV); 96-42 (Vol. XIV); 90-91 (Vol. VI).

Opinion:

         A criminal court judge asks what steps he/she must take when the judge’s court attorney, who is the judge’s personal appointee, applies for employment with the local, large urban district attorney’s appeals bureau. The judge advises that the district attorney’s trial division prosecutes almost every matter that comes before the judge. At the time of the inquiry, the court attorney had not yet been scheduled to interview for the new position.

         A judge must avoid impropriety and the appearance of impropriety in all of the judge’s activities (22 NYCRR 100.2), and must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). This Committee has previously concluded that a judge must disclose the fact that his/her law clerk has applied for employment with a private law firm that regularly appears before the judge, and must insulate the law clerk from any cases involving the law firm. Joint Opinion 07-87/07-95. In the present inquiry, however, it is significant - but not alone determinative - that the district attorney’s office to which the court attorney has applied for employment is very large, employing hundreds of assistant district attorneys. See Opinions 97-82 (Vol. XVI); 97-39 (Vol. XV); 96-42 (Vol. XIV); 90-91 (Vol. VI).

         In the present inquiry, it is the Committee’s view that to require disclosure and/or recusal in all cases involving the district attorney’s office after the court attorney applies for employment with that office would impose an unnecessary systemic burden that likely would result in a significant number of recusal requests over extended periods of time. If a judge were required to grant motions for disqualification for such a facially weak reason, the affected courts with already crushing caseloads could devolve into chaos. Judges would be forced to insulate their court attorneys from hundreds of cases, even when the judges are completely confident in their court attorneys’ integrity and competence.

         The Committee therefore advises a more rational approach. The Committee believes that a judge, who selects, supervises, and knows his/her court attorney - and who is faced with this situation - can be trusted to exercise appropriate discretion either to disclose the relevant facts, to insulate his/her court attorney, or to offer recusal when and if the judge believes it necessary in a particular case prosecuted by the district attorney - or in some or all cases prosecuted by the district attorney - to preserve the court’s impartiality or the appearance of impartiality. Every day society trusts judges to exercise their discretion carefully and honestly, and in many more delicate situations than the one posed by the inquiring judge. The Committee sees absolutely no reason to force a compromise of that trust on these facts.

         If the judge learns, however, that the district attorney has offered employment to the judge’s court attorney, or if the court attorney and the district attorney are actually negotiating for such a position, the judge should then act. The judge may either: 1) seek to transfer the court attorney to a civil part; or 2) insulate the court attorney, or at least offer to do so, until the court attorney either ends the negotiations for employment, rejects an offer for employment, or, if the court attorney accepts an offer for employment, until the court attorney assumes his/her new position. The Committee also recommends that the judge stress to the court attorney the crucial importance of keeping the judge fully informed of the status of his/her employment application process.