Opinion 08-167

October 23, 2008

Please Note: Opinions 07-04 and 07-87/07-95, cited herein, have 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:         A former judge who retired from the bench more than one year ago and who serves as a judicial hearing officer may appoint an attorney who was his/her law clerk to serve as a law guardian for children in matters assigned to him/her, assuming the former law clerk is otherwise eligible for such appointment.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); Joint Opinion 07-87/95; Opinion 07-04.

Opinion:

         A former judge who retired from the bench more than one year ago and who serves as a judicial hearing officer asks whether he/she may appoint an attorney who was his/her law clerk to serve as a law guardian for children in matters assigned to him/her. The inquiring judicial hearing officer advises that he/she has no legal relationship with the former law clerk.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (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]). Therefore, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).

         The relationship between a judge and his/her law clerk is one of particular trust and confidence and is similar to that between long-time colleagues in a law firm (see Opinion 07-04). Therefore, the Committee has advised that for a period of one year after a law clerk leaves a judge’s employ, when the former law clerk appears before the judge, the judge should disclose that the attorney formerly served as his/her law clerk, and exercise recusal upon a party’s request (see Joint Opinion 07-87/07-95).

         In the present inquiry, the former law clerk left the judicial hearing officer’s employ more than one year ago. Therefore, the judicial hearing officer may appoint his/her former law clerk to serve as a law guardian in cases over which he/she presides, assuming the former law clerk is otherwise eligible for such appointment.