Opinion 13-182

December 12, 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:         A part-time judge who also serves as a full-time principal law clerk to Judge B (1) may preside in cases where another part-time attorney judge, other than a co-judge, appears; but (2) is disqualified, subject to remittal, from cases where Judge B’s sibling appears.

Rules:          22 NYCRR 50.6; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(E)(1); 100.3(F); 100.6(B)(2)-(3); Opinions 12-72; 12-45; Joint Opinion 10-73/10-100/10-167; Opinions 09-138; 07-04.

Opinion:

         The inquiring part-time local court justice, an attorney, also serves as a full-time principal law clerk to a full-time judge (“Judge B”). The inquiring judge notes, as a full-time court employee, he/she is generally prohibited from practicing law privately (see 22 NYCRR 50.6). The judge asks if he/she may preside over cases where a party is represented by (1) “an attorney who is also a part-time judge in the same county” or (2) “a sibling of [Judge B].”

         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]). Thus, for example, a judge must 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 not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A part-time lawyer judge may not practice law in any court located in the same county where he/she presides, before another judge who also is permitted to practice law (see 22 NYCRR 100.6[B][2]).¹ Also, a judge must disqualify him/herself when the judge's impartiality might reasonably be questioned (22 NYCRR 100.3[E][1]).

         With respect to the first question, the Committee has previously advised that a part-time lawyer judge may appear before another part-time lawyer judge who presides in the same county and is employed full-time by the Unified Court System as a full-time law clerk (see Joint Opinion 10-73/10-100/10-167). The Committee therefore concludes that the inquiring judge, who is a full-time law clerk, may likewise preside in cases where another part-time lawyer judge appears (see id.). Of course, the judge must not preside over matters in which his/her co-judge(s) appear (see 22 NYCRR 100.6[B][2]-[3]).

         As for the next question, it’s noted that a judge’s principal law clerk is traditionally his/her personal appointee whose continued full-time clerkship largely depends on Judge B. The financial aspect of this employment status may be significant, particularly if the inquirer’s salary as a full-time law clerk is a primary source of earned income (cf. Opinion 12-72 [describing disqualification requirements “when certain close relatives of a town or village board member who participates in setting the judge’s salary appear in the judge’s court” in various capacities]). Also, the Committee sees the relationship between a judge and his/her own personal law clerk as one of “particular trust and confidence, generally involving “the kind of professional interchange that might be found between long-time colleagues in a law firm” (Opinion 07-04; see also Opinion 12-45). Given the overall nature of this relationship, the Committee concludes that the inquirer’s impartiality might reasonably be questioned if Judge B’s sibling appears before him/her in the local court where he/she presides (see 22 NYCRR 100.3[E][1]). Thus, the judge is disqualified subject to remittal Judge B’s lawyer/sibling appears, unless a party is unrepresented (see 22 NYCRR 100.3[F]; Opinion 12-72).²

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     ¹ Neither a part-time lawyer judge nor his/her law partners or associates may practice law “in the court on which the judge serves” (22 NYCRR 100.6[B][2]-[3]), and that judge’s co-judge(s) must also honor the prohibition (see 22 NYCRR 100.6[B][3]).

     ² Remittal is a three-step process: “First the judge must fully disclose the basis for disqualification on the record... . Second, ... 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]).