Joint Opinion 10-107/10-158

October 28, 2010

Digest:         (1) Provided a judge’s former law clerk is otherwise qualified, a judge may appoint his/her former law clerk to Part 36 positions, except where the case was pending before the judge during the law clerk’s term of employment. However, if a former law clerk the judge so appointed to a Part 36 position appears before his/her former judge in an adversarial role within one year after his/her employment with the judge ended, the judge must disclose that employment relationship, 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. (2) Assuming the law clerk is otherwise qualified, a judge may appoint his/her former law clerk as a referee to hear and report findings of fact and conclusions of law pursuant to Surrogates Court Procedure Act §506 and as a referee to supervise disclosure pursuant to Civil Practice Law and Rules §3104(a) anytime after the law clerk retires, but need not disclose their former employment relationship.

Rules:          22 NYCRR 36.0; 36.2(c)(1),(3),(5); 100.2; 100.2(A); 100.3(C)(3); Surrogate Courts Procedure Act §506; Civil Practice Law and Rules §3104(a).

Opinion:

         The inquiring judges ask whether they can appoint their former law clerks to certain positions after their law clerks resign/retire. In Inquiry 10-107, the judge asks whether he/she may appoint his/her former law clerk as a referee to hear and report findings of fact and conclusions of law pursuant to Surrogates Court Procedure Act (SCPA) §506, as a referee to supervise disclosure pursuant to Civil Practice Law and Rules (CPLR) §3104(a) or to a position governed by Part 36 of the Rules of the Chief Judge (Part 36). The judge in Inquiry 10-158 asks whether he/she may appoint his/her former law clerk as a Court Examiner in Article 81 guardianship matters, which also is an appointment governed by Part 36.

         A judge must avoid impropriety and the appearance of impropriety in all the judges activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge shall exercise the power of appointment impartially, on the basis of merit and shall avoid favoritism (see 22 NYCRR 100.3[C][3]).

         Part 36 is intended to ensure that judicial appointments are based on merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case (see 22 NYCRR 36.0). Pursuant to Part 36, certain individuals are disqualified from judicial appointments, including a judge or housing judge of the Unified Court System, full and part-time employees of the Unified Court System, and former judges or housing judges of the Unified Court System within two years from the date the judge left judicial office by a court within the jurisdiction where the judge served (see 22 NYCRR 36.2[c][1], [3], [5]). However, Part 36 does not disqualify former law clerks from judicial appointments. Nor is a judge required by Part 36 to wait any period of time after a law clerk leaves the judge’s employ before appointing him/her to a Part 36 position. Therefore, provided they are otherwise qualified, the inquiring judges may appoint their former law clerks to Part 36 positions, except in a case that was pending in the judge’s court during the law clerk’s term of employment.

         Nevertheless, during the first year after the end of the law clerk’s employment with the judge, where the former law clerk appears in the judge’s court as a Part 36 appointee in an adversarial role, the judge must disclose to all parties his/her former employment relationship with the former law clerk. After such disclosure, the judge has the discretion to grant or deny a party’s request that he/she recuse him/herself based on the facts in the particular case.

         However, if the judge appoints his/her former law clerk to a position governed by Part 36 that is quasi-judicial in nature, such as a court examiner or guardian ad litem appointed to investigate and report to the court on particular issues, the judge is not required to disclose his/her former employment relationship with the former law clerk.

         Similarly, the judge in Inquiry 10-107 is not restricted from appointing his/her former law clerk to serve as a referee to hear and report findings of fact and conclusions of law pursuant to SCPA 506 or as a referee to supervise disclosure pursuant to CPLR 3104(a) once his/her law clerk retires, as long as his/her law clerk is otherwise eligible and qualified for such appointment. And, as these appointments are quasi-judicial in nature, the judge is not required to disclose their former employment relationship.