Opinion 15-132

June 11, 2015

Digest:         A judge may hire his/her current law clerk’s spouse as the judge’s secretary, provided the spouse is qualified for such appointment.

Rules:          22 NYCRR 8.1; 100.2; 100.2(A); 100.2(B); 100.3(C)(3); Opinions 10-107/10-158; 00-66.

Opinion:       

         A full-time judge asks whether he/she may hire his/her current law clerk’s spouse as the judge’s secretary. The judge has known the law clerk’s spouse for over a decade and considers the spouse “abundantly qualified and competent” for the position and trusts the spouse to work in chambers.

         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]). Therefore, a judge must not allow family, social, political, or other relationships to influence a judge’s judicial conduct or judgement (see 22 NYCRR 100.2[B]).

         With respect to judicial appointments, a judge may not make unnecessary appointments and must “exercise the power of appointment impartially and on the basis of merit” and “avoid nepotism and favoritism” (see 22 NYCRR 100.3[C][3]). Further, a judge may not appoint a relative within the fourth degree of relationship of either the judge or the judge’s spouse or the spouse of such person (see id.) and must comply with the requirements of Part 8 of the Rules of the Chief Judge relating to the appointment of relatives of judges (see id.).¹

            The Committee has advised that a judge may appoint his/her former law clerk as a referee provided that the former law clerk is qualified for such appointment, observing that former law clerks were not among the specifically enumerated list of individuals disqualified from judicial appointments (see Opinion 10-107/10-158). Conversely, the Committee has advised that a judge serving by interim appointment may not appoint as a law clerk “an assistant district attorney who would be on a leave of absence from the District Attorney’s office pending the outcome of the election,” as the law clerk’s “continuing official connection with the prosecutor’s office is clearly incompatible with maintaining the appearance of judicial impartiality” (Opinion 00-66).

         Here, although the Rules Governing Judicial Conduct place certain limits on the appointment of a sitting judge’s relatives, they do not similarly prohibit appointment of a law clerk’s relatives. Moreover, the Committee can see no appearance of impropriety where, as here, the inquiring judge knows and trusts his/her law clerk’s spouse and has determined that he/she is “abundantly qualified and competent” for a secretarial position in chambers.

         Therefore, in the Committee’s view, the judge’s appointment of his/her current law clerk’s spouse as the judge’s personal secretary is ethically permissible, provided the spouse is qualified for such appointment.

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           ¹ Part 8 prohibits certain appointments of an individual who “is a relative within the fourth degree of relationship, or the spouse of such relative, of any judge or the spouse of such judge of the same court within the county in which the appointment is to be made” at the time of the appointment (22 NYCRR 8.1).