Opinion 10-123

October 28, 2010

Digest:         A village justice need not disqualify him/herself when a law firm that employs the village justice court clerk’s non-lawyer child as a paralegal appears in the judge’s court, but the judge should insulate the court clerk from any matter in which the firm is involved.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 09-44; 07-50; 07-40; 05-151 mod. by 08-126; 01-108; 00-123 (Vol. XX); 99-72 (Vol. XVIII); 98-66 (Vol. XVII); 96-85 (Vol. XIV); 90-130 (Vol. VI).

Opinion:

         A judge states that a local law firm has recently hired the non-lawyer child of the court’s sole court clerk as a paralegal. The judge indicates that it is his/her belief and understanding that the court clerk’s child is currently assigned to work only with attorneys who do not appear before the judge and only on matters that do not come before the judge’s court. According to information the judge provided, an attorney from the firm has asked the judge to “transfer cases in which [the firm] appears” to another court because “having the mother of our paralegal work as a court clerk in [the same court] raises an appearance of a conflict of interest” and could even cause the court “to ‘come down’ harder on our clients to dispel” any appearance of favoritism. The judge nonetheless believes that he/she can be fair and impartial in matters in which the law firm appears. The judge states that it would be “difficult, but not impossible” to insulate the court clerk from matters in which the law firm appears, and that the court also has an acting justice who “sits occasionally.” The judge asks whether, under the circumstances, he/she is disqualified from cases in which the employer of his/her court clerk’s child appears.

         A judge must avoid impropriety and its appearance (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 must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously considered whether a judge may preside when a member of the judge’s non-legal staff is related to an individual who is employed by an office or department that regularly appears in the judge’s court. After considering many different job titles and relationships, the Committee generally has advised that a judge’s impartiality cannot reasonably be questioned when a law firm that employs a court staff member’s relative appears in the judge’s court (see e.g. Opinions 09-44 [citing and discussing numerous prior opinions]; 07-50 [deputy court clerk’s step-child is law enforcement officer who applies for search warrants in the judge’s court]; 07-40 [court clerk’s child is investigator for district attorney’s office]; 01-108 [village court clerk’s spouse is a village police officer who performs administrative duties]; 00-123 [Vol. XX] [part-time town court clerk’s spouse prosecutes animal nuisance complaints in town court]; 99-72 [Vol. XVIII] [full-time court clerk’s spouse is a state trooper]; 98-66 [Vol. XVII] [deputy court clerk’s daughter is an attorney who appears in the judge’s court]; 96-85 [Vol. XIV] [chief clerk’s spouse is an attorney who appears in the judge’s court]; 90-130 [Vol. V] [deputy court clerk’s spouse is an attorney who appears in the judge’s court]; but see 05-151, modified by 08-126 [given particular nature of relationship, judge is disqualified, subject to remittal, where judge’s secretary’s spouse is an attorney who appears in the judge’s court]; Opinion 99-72 [Vol. XVIII] [where insulation impossible, only feasible course is for judge to disqualify him/herself and transfer case]).

         Therefore, the inquiring judge need not disqualify him/herself, but should insulate the court clerk from all cases in which the law firm that employs the court clerk’s child as a paralegal appears (see Opinions 09-44; 90-130 [Vol. VI]).