Joint Opinion 07-87/07-95

June 7, 2007

Please Note: Point 4 has been modified by Joint Opinion 10-107/10-158 (after disclosure, the judge has discretion, based on the facts of the particular case, to grant or deny a party's request that the judge recuse him/herself).

Digest:         (1) A judge who learns that his/her law clerk has been contacted by a law firm about post-clerkship employment should insulate the law clerk from any matters involving the firm, disclose such insulation to the parties, and upon disclosure, may, but is not required to, exercise recusal upon request. (2) A judge should continue to insulate his/her law clerk as long as the law clerk is involved in discussions with a law firm about post-clerkship employment, and, upon the law clerk’s acceptance of an offer from a law firm, the judge must continue to insulate the law clerk from any matters involving the law firm during the remainder of the law clerk’s employment by the court. (3) A judge may terminate a law clerk’s insulation once the law clerk’s discussions about post-clerkship employment with the firm end without an offer. (4) For a period of one year after a law clerk leaves the court’s employment, a judge should disclose his/her relationship with the former law clerk when he/she appears as an attorney before the judge, and recuse upon a party’s request.

Rules:          22 NYCRR 100.2(A); 100.3(E)(1); Opinions 07-04; 04-35; 02-112; 99-139 (Vol. XVIII); 99-91 Vol. (XVIII).

Opinion:

         Two judges ask about the ethical implications of their respective law clerks interviewing for and accepting post-clerkship employment. One law clerk was appointed for a set term of service while the other was appointed for an indefinite term. Each judge asks what steps he/she must take when his/her law clerk either has: 1) been contacted to arrange for an interview; or 2) begun negotiating the terms of employment; or 3) accepted employment with a law firm that appears before the judge.

         The Rules Governing Judicial Conduct require a judge to avoid the appearance of impropriety and to act, at all times, in a manner that promotes public confidence in the integrity and the impartiality of the judiciary. 22 NYCRR 100.2(A). To further that goal, the Rules also require disqualification of the judge in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1).

         With respect to previous employers of a judge’s law clerk appearing before the judge, the Committee has issued a number of opinions dealing with how such appearances should be handled. See e.g., Opinions 02-112; 99-139 (Vol. XVIII); 99-91 (Vol. XVIII). Here, however, it is the law clerk who is presently seeking other employment or has accepted such a position. Under these circumstances a variety of situations may confront the judge.

         Preliminarily, we believe it important for all law clerks to a judge to keep the judge apprised of any contacts they may have with any law firm with which they are seeking post-clerkship employment following submission of an application or resume.

         Thus, it is our view that once a judge learns a law firm has contacted his/her law clerk about post-clerkship employment, the judge should: 1) insulate the law clerk from any matters involving that firm, and 2) disclose that insulation to all parties. In the event a party requests recusal, the judge should exercise his or her discretion in determining whether to recuse if a claim is made that in that particular proceeding "the judge's impartiality might reasonably be questioned." Opinion 99-139 (Vol. XVIII). The judge should continue to insulate the law clerk for as long as the law clerk is involved in discussions with the law firm about post-clerkship employment. If the law firm offers, and the law clerk accepts a position, the judge must continue to insulate the law clerk from any matters involving that firm until the law clerk’s employment with the judge ceases. However, the judge may terminate the law clerk’s insulation once the discussions with the firm end without an offer.

         For a period of one year after a law clerk leaves the court’s employ, the judge should disclose their prior employment relationship in the event the former law clerk appears as an attorney in front of the judge, and recuse if a party so requests. Opinion 07-04; see also Opinion 04-35.