Opinion 14-27

April 24, 2014

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) Ordinarily, for a period of one year after a judge’s personal law clerk leaves the judge’s employ to join a private law firm, the judge must fully disclose the former relationship when the former law clerk’s current law firm colleagues appear in the judge’s court. After disclosure, the judge has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case. However, if any party is proceeding without legal representation in the case, the judge must not preside. (2) Where the former law clerk is a salaried, non-equity employee of the law firm, however, if the law firm demonstrates to the judge’s satisfaction it has taken steps to ensure the judge’s former law clerk is completely insulated from all of the firm’s cases litigated in the judge’s court for a period of one year from the date the law clerk’s court employment with the judge ended, the judge may thereafter preside in matters involving the law firm without incurring any obligation to disclose the former law clerk’s employment with the firm.

Rules:          Judiciary Law § 14; 22NYCCR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 22 NYCRR 1200, Rule 1.11(a)(1); Opinions 13-106; 12-45; 12-36; 11-64; 07-173; 07-04; 04-35; Joint Opinion 10-107/10-158; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge states that his/her docket includes a substantial number of residential foreclosure cases, exclusively within a particular county and that many litigants in such cases appear pro se.¹ The judge’s former law clerk has recently joined a large private law firm as an associate (a salaried, non-equity employee position) in foreclosure matters. The law firm handles foreclosure cases in several counties, including the county in which the judge presides. The judge does not wish to preside in matters involving his/her former law clerk but believes that he/she can be impartial in other cases where the law clerk’s employer appears. The judge thus asks if he/she may preside when current law firm colleagues of the judge’s former law clerk appear in the judge’s part, either directly before the judge or before court employees acting on the judge’s behalf.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes 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]).²

         The relationship between a judge and his/her law clerk is one of “particular trust and confidence” and involves generally “the kind of professional interchange that might be found between long-time colleagues in a law firm” (Opinion 12-45, quoting Opinion 07-04). Accordingly, the Committee has advised that, for a period of one year after a law clerk leaves a judge’s employ, the judge must fully disclose the former relationship when the former law clerk appears before the judge, “but has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case” (Joint Opinion 10-107/10-158 [modifying prior opinions]; see also Opinions 07-04 [as modified]; 04-35 [as modified]). However, because disclosure is mandated during this period in lieu of outright disqualification, the judge must not preside if any party is appearing without counsel, without the possibility of remittal (see Opinion 12-36).

         The present inquiry focuses on whether disclosure or disqualification is required when the former law clerk has entered private practice, and his/her law firm appears before the judge. The Committee has previously advised that for a period of one year after a law clerk’s employment with a judge ends, the judge should disclose his/her relationship with the former law clerk and disqualify him/herself on a party’s request when his/her former law clerk’s current law partner appears in the judge’s court (see Opinion 07-173). On further consideration, the Committee believes that this rule should be modified to be consistent with Joint Opinion 10-107/10-158. That is, for a period of one year after a law clerk leaves a judge’s employ, the judge must fully disclose the former relationship when the former law clerk’s law firm colleagues appear before the judge, but has the discretion to grant or deny any subsequent request for recusal based on all the facts of the relationship and the particular case (see Joint Opinion 10-107/10-158). Again, because disclosure is mandated in lieu of outright disqualification, the judge must not preside if any party is appearing without counsel (see Opinion 12-36). Opinion 07-173 is hereby modified to be consistent with this view.

         However, the Committee believes that there are significant factual distinctions between Opinion 07-173 and the present inquiry with respect to the former law clerk’s law firm colleagues. In particular, the judge’s former law clerk in Opinion 07-173 formed a law partnership with only one attorney, and the former law clerk’s attorney-partner was also a sufficiently close personal friend that he/she had, at one time, temporarily resided in the attorney’s home. By contrast, under the circumstances presented here, the judge’s former law clerk is joining a large law firm that practices law in multiple counties. Moreover, the former law clerk is not a partner of the law firm, but instead is a salaried associate, i.e., a non-equity employee of the firm who is not entitled to share the law firm profits.

         The Committee believes that the circumstances described do not create any objectively reasonable basis to question the judge’s impartiality when other attorneys from the law firm appear before the judge, provided that the judge’s former law clerk has no personal involvement in the matter (see 22 NYCRR 100.3[E][1]). That is, an appearance of impropriety will result only if the judge presides over cases in which the former law clerk is, or appears to be, personally involved.

         The Committee believes that this possible appearance can be entirely dispelled if the law firm creates an effective ethical screen or wall to insulate the law clerk from all cases in the judge’s part. Accordingly, the judge may, in his/her discretion, invite the law firm to create an ethical screen or wall for the law clerk as provided for in this opinion (see e.g. 22 NYCRR 1200, Rule 1.11[a][1] [describing how a law firm may create an ethical screen]). In the present inquiry, the inquiring judge handles residential foreclosures exclusively within a particular county, and the law firm handles residential foreclosures in multiple counties. In the Committee’s view, under these facts, if the law firm completely insulates the judge’s former law clerk from all residential foreclosures within the judge’s county, there will be no objectively reasonable basis to question the judge’s impartiality.

         If the law firm is able to satisfy the judge that it has taken steps to ensure that the judge’s former law clerk is completely insulated from all cases in the judge’s part for a period of one year from the date that the law clerk’s court employment with the judge ended, the judge may thereafter preside in matters involving the law firm without incurring any obligation to disclose the former law clerk’s employment with the firm. Because disclosure is not mandated, the judge may preside in matters where the law firm’s adversary is proceeding without legal representation (see e.g. Opinion 13-106 [where any disclosure the judge chooses to make is purely prophylactic, the judge need not disqualify him/herself when litigants appear pro se).

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     ¹ The Committee notes that residential mortgage foreclosures are just one of several types of cases in which certain classes of litigants routinely appear without counsel.

     ² There are two initial objective tests to determine if disqualification is mandatory: Is disqualification required under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14? If not, might the judge’s impartiality nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1])? If disqualification is not mandated under either objective test, 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). Applying these principles to the present inquiry, the first question is easily answered: the facts presented do not involve any of the enumerated circumstances in which disqualification is specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Accordingly, this Opinion will focus on the second question.