Opinion 12-155
December 13, 2012
Digest: (1) A judge must disclose facts that create an appearance that the judge’s law clerk, during his/her former employment, was involved in representing the plaintiff in a matter currently before the judge, and must insulate the law clerk from the matter. (2) The judge has no obligation to disclose the law clerk’s prior employment or insulate the law clerk in other, highly similar cases involving the same defendant, where the cases do not involve the law clerk’s former client or prior employer and in which the law clerk has had no previous involvement. (3) The judge is not disqualified from presiding over any of these cases due to his/her law clerk’s former employment.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 12-75; 11-108; 11-26; 09-27; Joint Opinion 07-105/07-119; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge has hired a law clerk who, until recently, was an associate at a law firm. The law clerk’s former employer has a case before the judge (the “Firm’s Case”), which is one of several very similar, high-profile cases that have been filed against a particular defendant in various courts. A few of these cases (involving the same defendant but different plaintiffs) are pending before the inquiring judge (the “Additional Cases”). The judge notes that the law clerk’s former employer is not involved in the Additional Cases, but does represent one or more plaintiffs in similar cases in other courts.
Although the law clerk was never assigned to work on the Firm’s Case, he/she was involved in a similar matter that was commenced against another, similarly situated defendant on behalf of a different client, and the law clerk “heard colleagues discuss” the Firm’s Case while working at the firm.1
The judge now asks:
1. Considering [my law clerk’s] former association with [the firm], will [the law clerk] ever be able to work on any aspect of [the Firm’s Case]? If so, when would that be possible?
2. Does [my law clerk’s] former association with [the firm] preclude [his/her] involvement in [the Additional Cases]?
3. [W]ill I have to recuse myself should the defendants in [the Firm’s Case or the Additional Cases] make a motion asking me to recuse myself because of [my law clerk’s former employment]?
A judge must always avoid even the appearance of impropriety (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]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law §14). Conversely, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
Law Clerk’s Participation in the Firm’s Case and the Additional Cases
The Committee has advised that a judge must insulate his/her law clerk from matters in which the law clerk was personally involved during the law clerk’s prior employment in a private law firm, and must disclose to the parties and their attorneys that the law clerk has been insulated and the reason for such insulation (see Opinion 09-27).
Although it appears from the facts presented in the inquiry, that the law firm did not specifically assign the judge’s law clerk to work on the Firm’s Case during his/her employment, the inquirer does indicate that the law clerk was present when firm colleagues were discussing the Firm’s Case. Whether the law clerk remembers the conversation in detail, the Committee notes that the law clerk and his/her law firm colleagues were both representing similarly situated clients. Therefore, it is not unreasonable for an outside observer to assume they shared their ideas or thoughts about the cases they were preparing.
In the Committee’s view, these circumstances create an appearance that the law clerk was involved in the Firm’s Case. Therefore, the judge should disclose the law clerk’s former employment and exposure to the Firm’s Case and insulate the law clerk from the matter (see Opinion 09-27). The requirement to insulate the law clerk from this specific matter will not expire; the judge may not permit the law clerk to work on this particular matter at any time (cf. id.).
However, in the Additional Cases, where neither the law clerk nor the law clerk’s former employer has had any involvement, the judge is neither required to insulate the law clerk nor to disclose the law clerk’s prior employment. The fact that the law clerk was involved in another similar case that the law clerk’s former employer commenced on behalf of a different client against a different (albeit similarly situated) defendant that is pending before a different judge, does not dictate a different result. To conclude otherwise would prevent a judge from hiring attorneys with experience in the types of cases over which the judge presides (cf. Joint Opinion 07-105/07-119).
Judge’s Participation in the Firm’s Case and the Additional Cases
In the Committee’s view, the judge’s impartiality cannot reasonably be questioned under the circumstances presented, based solely on his/her law clerk’s former employment (see 22 NYCRR 100.3[E][1]). If a party asks the judge to disqualify him/herself in the Firm’s Case or the Additional Cases based on the law clerk’s former employment, the judge must exercise his/her discretion in light of the facts of the particular case in determining whether to grant the request (see Opinion 09-27). That is, the judge may continue to preside unless the judge believes he/she cannot be fair and impartial, a determination solely within the judge’s discretion after searching his/her personal conscience (see generally People v Moreno, 70 NY2d 403 [1987]; Opinion 12-75).
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1 Although it is not clear from the inquiry how much the law clerk remembers of this discussion, the Committee concludes that it need not resolve the factual issue.