Opinion 12-05

January 26, 2012

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A judge who is a former law clerk is disqualified, subject to remittal, when his/her former supervising judge appears as an attorney, for one year after the employment relationship ended. Thereafter, for one additional year, the judge must disclose his/her former employment relationship with the former judge, but has the discretion to grant or deny a resulting motion for recusal. Moreover, during this two-year period, the judge may not preside over matters in which his/her former judge or supervisor appears if any party to the matter is proceeding without legal representation.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B);100.3(E)(1); 100.3(F); Opinion 11-127; 11-106; 11-20; Joint Opinion 11-18/11-42; Opinions 09-138; 09-07; Joint Opinion 08-171/08-174; Opinions 08-167; 08-107; 08-98; 08-91; 07-173; Joint Opinion 07-87/07-95; Opinions 07-04; 04-35; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge who is a former law clerk asks whether he/she may preside over matters in which his/her former judge/supervisor (now retired) appears as defense counsel. The inquiring judge states that his/her employment as a law clerk ended more than one year ago.

         A judge must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). In particular, 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]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The relationship between a judge and his/her law clerk is “one of particular trust and confidence,” resulting in “the kind of professional interchange that might be found between long-time colleagues in a law firm” (Opinion 07-04). The Committee has previously advised that for a period of one year after a law clerk leaves a judge’s employment, the judge “should disclose the former relationship and exercise recusal upon a party’s request, whenever the former law clerk appears” (id. Opinion 07-04; see also Opinions 09-07; 08-107; 07-173; Joint Opinion 07-87/07-95; 04-35; cf. Opinion 08-167).

         However, where the attorney who appears in a judge’s court previously was the presiding judge’s supervisor or served in some other supervisory position (former supervisor) in relation to the currently presiding judge or quasi-judicial officer (former supervisee), the Committee has advised that the former supervisee (i.e., the current presiding judge) is disqualified subject to remittal from all proceedings in which the former supervisor appears for two years after the former supervisor’s association with the court ended (see Opinions 08-98 [for two years after former judge left the court where court attorney referee presides, court attorney referee is disqualified, subject to remittal, when former judge appears before him/her]; 08-91 [for two years after chief court attorney’s employment with the court ended, court attorney referee, who was the former chief court attorney’s supervisee, should disqualify him/herself when the former chief court attorney appears before him/her]; 22 NYCRR 100.3[E][1]).

         In this latter circumstance, the Committee is now of the view that during the first year after the supervisory relationship between the former supervisor and the presiding former supervisee ended, the presiding former supervisee is disqualified subject to remittal when the former supervisor appears (see 22 NYCRR 100.3[F]). If the former supervisee believes he/she can be fair and impartial as the presiding judge, and is also willing to preside, and if all parties are represented by counsel, the former supervisee may disclose the reason for his/her disqualification so that the parties and their counsel may consider whether to remit his/her disqualification (see 22 NYCRR 100.3[F]; Joint Opinion 11-18/11-42).¹ The presiding former supervisee must fully disclose the reason for the disqualification - including a description of their present (if any) and former relationship - and, in the absence of such full disclosure, must not preside in the matter (see id.). Furthermore, if any party is appearing without legal representation, remittal is not available (see Opinion 11-106).

          During the second year, the former supervisee is no longer required to disqualify him/herself because of the former supervisor/supervisee relationship, but must disclose it; that is, the former supervisee must fully disclose the nature of his/her prior relationship with the former supervisor and, if a party objects to the former supervisee presiding, the former supervisee may exercise his/her discretion in determining whether to disqualify him/herself after considering all relevant factors (see Opinion 11-20; see also People v Moreno, 70 NY2d 403 [1987]). If he/she decides to preside, the former supervisee should put his/her reasons for doing so on the record (see Opinion 11-20). In the absence of such full disclosure, the former supervisee must exercise recusal (see Joint Opinion 08-171/08-174). Also, the former supervisee must not preside if any party appears without legal representation (see Opinion 11-127 [explaining the different ethics obligations resulting from a mandatory vs a permissive disclosure]).

         After the two-year period ends, disqualification and/or disclosure are entirely within the judge’s discretion as long as the judge concludes that he/she can be fair and impartial (see People v Moreno, 70 NY2d 403 [1987]).

          This opinion modifies the Committee’s advice in Opinion 08-98 with respect to a former judge appearing before a court attorney referee who was the former judge’s subordinate and Opinion 08-91 with respect to a former chief court attorney appearing before a court attorney referee who was the former chief court attorney’s subordinate.

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        ¹As the Committee has previously noted: “Remittal involves three-steps. First, the judge must fully disclose the basis for disqualification on the record. ... Second, following such disclosure, and without the judge’s participation, the parties who have appeared and not defaulted and their lawyers must all agree that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of his/her disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding” (Opinion 09-138, relying on 22 NYCRR 100.3[F]).