Opinion 13-80

June 13, 2013

Digest:         A judge may preside over matters in which the judge’s summer intern’s parent’s law firm appears but must disclose the intern’s employment and insulate the intern from such matters.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A)-(B); 100.3(C)(2); 100.3(E)(1); 100.3(E)(1)(a)-(e); 100.5(C); Opinions 11-64; 07-45; 07-04; 96-04 (Vol. XIV); 95-58 (Vol. XIII); 88-157 (Vol. III); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge is considering a law student’s application to serve as summer intern. The judge states that the law student’s parent’s law firm regularly appears before the judge. The judge asks whether insulating the intern would be sufficient to avoid any appearance of impropriety.

          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 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 from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).¹

         Under the circumstances presented, disqualification is not mandated pursuant to any of the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. Nor can the judge’s impartiality reasonably be questioned based on the familial relationship of a summer intern, who is inherently a “transient staff member” (Opinion 07-04 [distinguishing between law clerks and “more transient staff members, such as research clerks and student interns;” see also 22 NYCRR 100.3[E][1]).

         Although the present inquiry appears to be a matter of first impression,² the Committee believes that disclosure of the summer intern’s employment and insulation of the summer intern when the intern’s parent’s law firm appears is sufficient to dispel any possible appearance of impropriety. Thereafter, the judge may preside, provided that the judge believes he/she can be fair and impartial, a matter confined solely to the judge’s own discretion (see People v Moreno, 70 NY2d 403, 405 [1987]).

____________________________

     ¹ There are two objective tests to determine if disqualification is mandatory: The first question is whether disqualification is mandated pursuant to the specific circumstances set forth in the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[e]) or Judiciary Law §14. If none of these enumerated circumstances apply, the second question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under the objective standards of these two questions, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see Opinion 11-64).

     ² The Committee has addressed other issues relating to a judge’s current legal interns (see Opinions 07-45 [a judge’s unpaid legal intern may run for legislative office]; 96-04 [Vol. XIV] [a judge must require his/her volunteer interns to “comply with sections 100.3(C)(2) and 100.5(C) ... inasmuch as such persons are members of the judge’s staff”]) and has also addressed issues relating to appearances by a judge’s former legal intern or the former intern’s current employer (see Opinions 95-58 [Vol. XIII]; 88-157 [Vol. III]).