Opinion 13-138

October 24, 2013

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:         (1) A judge should not appoint as his/her personal law clerk an individual whose police officer spouse supervises an investigative unit that is involved in half of the criminal cases on the court’s calendar; (2) a judge formerly employed by the Department of Social Services as an attorney may preside over cases in which the agency appears, provided that the judge was not previously involved in the case.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(C)(1), 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(b)(I); 100.3(F); Opinions 13-26; 10-180; 09-211; 06-163; 01-108; 99-72 (Vol. XVIII); 97-107 (Vol. XVI); 90-57 (Vol. V); 89-117 (Vol. IV).

Opinion:

         A non-judge candidate for a county court judgeship asks about his/her ethical obligations if he/she is elected.¹ First, the inquirer asks whether he/she may appoint as his/her personal law clerk an individual whose police officer spouse supervises an investigative unit of a police department within the county where the candidate would preside. The inquirer states that the police department is directly involved in approximately half of the criminal cases on the County Court calendar, and also participates in joint task force operations with other law enforcement agencies that appear before the court. The inquirer believes that “it would be difficult or nearly impossible to insulate” his/her law clerk from all cases involving the police department. Second, the inquirer asks whether he/she will be able to preside over matters involving his/her current employer, the local Department of Social Services (“DSS”). The inquirer states that his/her primary responsibility at DSS is the prosecution of child abuse and neglect 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]). A judge must maintain professional competence in judicial administration (see 22 NYCRR 100.3[C][1]) and exercise the power of appointment impartially and on the basis of merit (see 22 NYCRR 100.3[C][3]). A judge also 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 advised that, as long as no party is appearing without counsel, when a relative of a judge’s personal appointee appears as an attorney (Opinion 13-26):

the judge may continue to preside if the judge concludes that he/she can be fair and impartial. However, the judge must disclose the existence of the relationship when the attorney or the attorney’s law firm appears in the judge’s court and must also disclose that the law clerk or secretary will be insulated from all cases involving the attorney or the attorney’s law firm. If a party objects to the judge’s continued involvement in the case, whether to continue to preside is solely within the judge’s discretion. (Because disclosure is mandated here in lieu of disqualification, the judge must simply disqualify him/herself if any party is proceeding without legal representation).

         Here, of course, the judge’s personal appointee’s spouse would not appear as an attorney, but would be involved in approximately half of the criminal cases, behind the scenes, as a law enforcement officer with supervisory responsibilities in investigations. Still, to avoid an appearance of impropriety, the judge would need to insulate the law clerk from all cases in which his/her spouse is involved (see 22 NYCRR 100.2; cf. Opinions 06-163; 01-108). Thus, the Committee sees a serious ethical impediment in the inquirer’s proposed appointment of a confidential law clerk whose spouse is the supervising police investigator in a police department that is involved in half the cases in the judge’s court. Notably, under the facts presented, insulation of the law clerk would deprive the judge of the law clerk’s services in half of the judge’s criminal caseload. This would impair the judge’s ability to fulfill the obligations of judicial office, which include the “disposition of judicial business that comes before the judge in the ordinary course of presiding over the court to which he/she was elected” (Opinion 97-107 [Vol. XVI]).

         Moreover, to the extent that the inquirer is correct that “it would be difficult or nearly impossible to insulate the [proposed law] clerk” from cases in which the law clerk’s spouse is involved, the judge would need to disqualify him/herself and transfer such cases (see Opinion 99-72 [Vol. XVIII]), creating administrative burdens that could be easily avoided by making a different appointment in the first instance.

         Therefore, the Committee concludes that the inquirer, if elected as a judge, should not appoint as his/her personal law clerk an individual whose police officer spouse supervises an investigative unit that is involved in half of the criminal cases on the court’s calendar.²

         As to the second inquiry, on similar facts this Committee has advised that a judge who previously worked for DSS may preside over cases in which the agency appears, provided that the judge did not personally participate in the matter during his/her former employment (see Opinion 90-57 [Vol. V]). The judge need not disclose the prior employment in other cases in which the judge was not involved as an attorney (see id.) and may preside in matters in which the judge was not the attorney of record and did not personally participate as a lawyer (see Opinion 89-117 [Vol. IV]).³ The same principles apply here. The judge must, of course, disqualify him/herself from presiding over any matters in which he/she previously served as an attorney (see 22 NYCRR 100.3[E][1][b][I]), and such disqualification is not subject to remittal (see 22 NYCRR 100.3[F]).

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         ¹ The Committee notes that answers to a judicial candidate’s questions about his/her judicial ethics obligations if elected as a judge are not necessarily hypothetical, because they may affect the candidate’s decisions throughout the course of the campaign including, but not limited to, decisions about whether to continue to seek judicial office.

           ² The Committee has previously advised that the Rules Governing Judicial Conduct do not prohibit a judge from appointing or approving the appointment of a village police officer’s spouse as a court clerk, although the judge should insulate the clerk from any proceedings in which the police officer spouse appears or was involved (see Opinions 06-163; 01-108). This is not necessarily determinative of the propriety of appointing a similarly situated individual as a judge’s personal law clerk, however, because of the “close connection between a judge and his/her law clerk, in terms of work performed and public perception” (Opinion 10-180, quoting Opinion 09-211).

         ³ Under the facts presented, there is no indication that the inquirer served in a supervisory capacity at DSS.