Opinion 08-153

September 11, 2008

Digest:         A judge is not required to recuse him/herself because the judge and the plaintiff’s counsel both presided in the same court for a number of years, are past officers of the same county bar association, and served together for two years on a bar association committee. Nor is the judge required to recuse him/herself or to insulate his/her law clerk where the law clerk previously worked as a court attorney when plaintiff’s counsel was a judge and plaintiff’s counsel greeted the judge’s law clerk, in the presence of the defendant and the defendant’s counsel, by briefly hugging the law clerk.

Rules:       People v Moreno, 70 NY2d 403 (1987); 22 NYCRR 16.1; 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Joint Opinion 07-105/119; Opinion 07-126; 07-122; 07-24; 04-121; 94-14 (Vol. XII); 91-57 (Vol. VII).

Opinion:

         The defendant in a matrimonial proceeding has asked the presiding judge to recuse him/herself because of the “close personal and business relationship” between the judge and the plaintiff’s counsel, and the past relationship between the judge’s law clerk and the plaintiff’s counsel. The judge advises that he/she and the plaintiff’s counsel both presided in the same court for a number of years, are past officers of the same county bar association, and served together for two years on a bar association committee. The judge further advises that plaintiff’s counsel has appeared before him/her on numerous occasions since these associations and that they have no business or personal dealings outside the court. The judge also advises that his/her law clerk was a court attorney who worked for all the judges of the court during plaintiff’s counsel’s term of office. Finally, the judge notes that during the only court appearance in the matrimonial proceeding, the plaintiff’s counsel hugged the inquiring the judge’s law clerk. According to the judge, his/her law clerk advised him/her that he/she did return the hug, it was unsolicited, and lasted only a moment.

         A judge must avoid impropriety and the appearance of impropriety (see 22 NYCRR 100.2) and must 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, must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) but, except as otherwise provided in §100.3(E) of the Rules Governing Judicial Conduct, may continue to preside upon remittal (see 22 NYCRR 100.3[F]). And, where disqualification is not mandatory pursuant to the Rules Governing Judicial Conduct, a judge has the discretion to exercise recusal based on his/her own personal conscience (see People v Moreno, 70 NY2d 403 [1987]; Opinions 07-122; 07-24).

         It is the Committee’s view that the facts and circumstances in the present inquiry, viewed either separately or in the aggregate, do not create an appearance of impropriety that would require the inquiring judge to disqualify him/herself or to insulate his/her law clerk.

         In Opinion 07-126, the Committee advised that a judge need not disqualify him/herself because an attorney now appearing before the judge served with him/her on a bar association committee. Nor is a presiding trial court judge required to disqualify him/herself when an attorney appearing before the judge previously was his/her co-judge in the same court (see Opinions 04-121; 94-14 [Vol. XII]).

         The Committee also has previously advised that a judge need not disqualify him/herself in a proceeding where the judge’s law clerk’s former employer appears in the judge’s court, but should insulate the law clerk if he/she was directly involved in the matter now before the judge (see Joint Opinion 07-105/ 07-119). Similarly, in the present inquiry, the judge is not required to disqualify him/herself because his/her law clerk previously worked for the attorney now appearing in the judge’s court and need only insulate the law clerk if he/she was directly involved in the present proceeding.

         Finally, the Committee also is of the view that the inquiring judge need not insulate the law clerk because the defendant in the matrimonial proceeding and the defendant’s counsel observed plaintiff’s counsel briefly hug the judge’s law clerk.

         While the Committee concludes that the judge is not required to exercise recusal or insulate his/her law clerk under the circumstances he/she describes, this opinion does not preclude the inquiring judge from doing either if, based on his/her own personal conscience, he/she believes it is better to do so.