Opinion 12-178

December 13, 2012

Digest:         Under the circumstances presented, a judge need not disclose a clerical court employee’s familial relationship, or insulate the court employee, when the attorney who employs the court employee’s non-lawyer relative appears in the judge’s court.

Rules:          22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(d),(e); 100.3(F); Part 1200, Professional Conduct Rule 5.4; Opinions 09-44; 08-126; 07-50; 07-40; 06-163.

Opinion:

         A judge asks if he/she must disclose that a court employee’s second degree relative¹ is a part-time secretary for an attorney who regularly appears in the judge’s court and insulate the employee from the attorney’s cases.

         According to the judge, the employee and the employee’s relative do not reside in the same household. The judge advises that the employee is not a member of the judge’s chamber staff, that he/she is not the employee’s supervisor and that he/she has no social relationship with the employee’s relative. The judge describes the employee’s duties as including the following tasks:

●starting and stopping the recording system;

●typing orders the judge dictates on the record;

●various other clerical and ministerial functions, such as logging orders received from attorneys; mailing conformed copies of orders; scanning signed orders into the court computer system; and, when requested by an attorney, making copies of recordings of court proceedings.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always 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]; 22 NYCRR 100.3[F] {describing remittal}).

         The Committee has advised that neither disqualification nor disclosure is required when the judge’s secretary’s fully emancipated, non-lawyer child is employed by a law firm that appears in the judge’s court (compare Opinion 09-44 with 08-126 [law clerk’s spouse is an attorney]). The judge must, however, insulate his/her secretary from the matter (see Opinion 09-44).

         Similarly, the Committee has advised that neither disqualification nor disclosure is required when a court clerk is related to a non-lawyer who is employed by an attorney, office or department that regularly appears in the judge’s court, provided that the clerk is insulated from matters involving his/her relative (see Opinions 07-40 [village justice may allow the parent of an investigator for the District Attorney’s Office to serve as village court clerk, provided that the clerk is insulated from any case involving the clerk’s child]; 07-50 [judge may sign a search warrant application submitted by a law enforcement officer who is the deputy court clerk’s step-child and may preside over cases involving any warrants issued in response thereto, provided that the clerk is insulated from any cases involving his/her step-child]; 06-163 [spouse of a village police investigator may serve as full-time village court clerk, provided that the clerk is insulated from any case in which the clerk’s spouse is involved]).

         While insulation is appropriate for a judge’s secretary who is privy to the judge’s daily correspondence and telephone calls about pending cases (see Opinion 09-44), or a court clerk who has significant statutory authority, such as certifying to the records of the court, and is involved in all aspects of cases pending in the court (see Opinion 07-40), the clerical employee who is the subject of the present inquiry is neither the judge’s personal appointee nor a court clerk or deputy court clerk. Rather, he/she performs functions that are supportive of the judge’s adjudicative responsibilities in a strictly clerical capacity only. Furthermore, as the court employee’s relative is a non-lawyer, he/she cannot have any financial partnership or other ownership interest in the employer’s law firm (see 22 NYCRR Part 1200, Professional Conduct Rule 5.4).

         Accordingly, the Committee concludes that under these circumstances neither disclosure nor insulation is required when the attorney who employs the clerical court employee’s second degree relative in a non-legal position appears in the judge’s court.

          The judge also advises that the clerical court employee’s relative currently is a student and is required to complete an internship. The judge understands that the employee’s relative is likely to serve as an intern with a county department that regularly appears in the judge’s court and asks if disclosure or insulation of the court employee is required during the internship. For the same reasons already discussed, and as the relative is not a lawyer or law student, and there is no indication that the relative will appear before the judge, the Committee concludes that neither disclosure nor insulation is required during the clerical court employee’s relative’s internship with the county department.

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     ¹ Relatives within the second degree of relationship include parents, grandparents, siblings, children, and grandchildren (cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see generally 22 NYCRR 100.3[E][1][d],[e]).