Opinion 15-14
January 29, 2015
Digest: An appellate judge who learns that his/her law clerk is seeking post-clerkship employment: (1) should advise him/her to keep the judge fully informed of the status of his/her applications; (2) must internally insulate the law clerk from all cases involving a prospective employer once the judge learns the prospective employer offered employment to the law clerk or that the law clerk and prospective employer are actually discussing or negotiating a position; (3) must internally insulate the law clerk from all cases involving the law clerk’s future employer once the judge learns the law clerk has accepted a job offer; (4) may discontinue insulating the law clerk from a prospective legal employer once the judge learns that the law clerk will not join that law office after the law clerk’s court employment ends. The judge need not affirmatively disclose to parties or counsel that he/she has insulated the law clerk, but may explain the procedures voluntarily if he/she wishes to do so.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 14-116; 14-64; 12-155; 12-02; 11-64; 09-111(A); 07-174; Joint Opinion 07-87/07-95; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring appellate judge’s personal law clerk is seeking post-clerkship employment in a prosecutor’s office or a private law firm and has recently secured an interview with a prospective employer. The judge requests “clarification of Opinion 07-174 and Joint Opinion 07-87/07-95 and their application to appellate judges” and also asks if the rationale of Opinion 07-174 applies to other large government agencies such as the corporation counsel for a large city or the Attorney General’s office. He/she says, in his/her court, law clerks for appellate judges “have no contact with lawyers from the district attorney’s office or from any other government agency.” The judge further explains “there is not a simple procedure” to disclose an appellate law clerk’s insulation to the parties because the attorneys are not informed which judges are on the appellate panel until shortly before oral argument. The judge notes that, due to this procedural difficulty, judges in his/her court have typically disqualified themselves from all cases involving law firms with which their law clerk is interviewing.
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, a judge must disqualify him/herself in any case where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in any circumstance required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). If disqualification is not mandated under these objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).
Ordinarily, the Committee advises that a judge’s impartiality cannot reasonably be questioned based solely on his/her law clerk’s conflict; instead, it is generally sufficient to insulate the law clerk as needed (see e.g. Opinions 12-155; 12-02 [noting, in a footnote, certain instances where disclosure of insulation has not been required]). Of course, if the judge questions his/her own impartiality in a particular matter, then he/she may not preside (see Opinion 11-64). With this backdrop, the Committee will turn to the judicial ethics landscape when a judge’s law clerk seeks post-clerkship employment.
Application for Employment or Submission of Resume
The Committee previously advised that the mere fact that a trial judge’s law clerk applies for a job – without more – does not trigger any ethical obligations of the judge to insulate the law clerk when the prospective legal employer appears before the judge. (see Opinion 07-174). Thus, when a judge’s law clerk submits his/her resume or other application but the prospective legal employer has not contacted the law clerk to arrange an interview, the judge may continue to preside in the prospective legal employer’s cases without disclosure or insulation (see id.). The Committee believes the same principle applies to an appellate judge whose law clerk applies for post-clerkship employment; mere submission of a resume or application to a prospective legal employer does not, alone, appear improper.1
However, the appellate judge should advise his/her law clerk to keep the judge fully informed of the status of his/her employment applications (see Opinion 07-174; Joint Opinion 07-87/07-95). Of course, to the extent the judge believes it will be helpful, the judge may direct the law clerk’s attention to the relevant job search stages as set forth in this opinion.2
Invitation to Interview
Clearly, a prospective legal employer’s contact with a law clerk to arrange an interview for possible post-clerkship employment is a first objective sign of mutual interest that may eventually create an employment relationship between the law clerk and prospective employer. Although uncertain an interview will result in a job offer; it is a significant first step.
Accordingly, the Committee has advised, when a private law firm contacts a trial judge’s law clerk to arrange for an interview, the judge must insulate the law clerk from all matters in which the prospective employer appears, and must disclose the insulation to the parties (see Joint Opinion 07-87/07-95).
By contrast, the Committee advised that if a criminal court judge’s law clerk applies to a “large urban district attorney’s appeals bureau,” and that office employs “hundreds of assistant district attorneys” who often appear before the judge, requiring insulation and disclosure at the interview stage “would impose an unnecessary systemic burden” not justified by the “facially weak” chance of an appearance of impropriety (see Opinion 07-174). Thus, on these facts, the Committee left it entirely to the judge’s careful and honest discretion “either to disclose the relevant facts, to insulate his/her court attorney, or to offer recusal when and if the judge believes it necessary in a particular case prosecuted by the district attorney - or in some or all cases prosecuted by the district attorney - to preserve the court’s impartiality or the appearance of impartiality” (id. [emphasis added]).
The Committee believes it appropriate to entrust the inquiring appellate judge with similar discretion at the interview stage, in light of the possible systemic burden of requiring insulation in an appellate court at a stage when the possible eventual employment relationship between the law clerk and a prospective employer remains so tentative and uncertain (cf. Opinion 07-174). Moreover, the Committee sees no need to distinguish between prospective legal employers of an appellate law clerk based on whether they are private law firms or governmental agencies. Accordingly, when the inquiring appellate judge learns his/her law clerk has an interview with any prospective legal employer, whether a private law firm or a public law office, the judge should carefully consider if it is necessary or advisable, under the specific circumstances presented, to insulate the law clerk from some or all cases of the prospective employer. In exercising this discretion, the appellate judge should be guided by considerations of whether such insulation is “necessary ... to preserve the court's impartiality or the appearance of impartiality” (Opinion 07-174). If the judge decides to exercise his/her discretion to insulate his/her law clerk from some or all appeals involving a prospective legal employer who has contacted the law clerk to arrange an interview (or has recently conducted an interview), insulating the law clerk internally is enough, without disclosure to the parties or counsel.
Job Offer or Negotiations for Post-Clerkship Employment
As the Committee has previously advised, once a trial court judge learns a prospective legal employer has offered employment to the judge’s law clerk or that the law clerk and prospective legal employer are actually discussing or negotiating for a position, the judge is obliged to act (see Opinion 07-174; Joint Opinion 07-87/07-95).
In matters where the prospective employer is a private law firm, of course, the trial court judge has been insulating his/her law clerk from matters involving the law firm, and disclosing such insulation, ever since the law firm contacted the law clerk for an interview (see Joint Opinion 07-87/07-95). The Committee has therefore advised, in effect, that such insulation and disclosure must continue at the stage when the private law firm makes a job offer and the law clerk is considering it and/or in discussions with the law firm (see id.). If the law clerk accepts the offer, the insulation and disclosure with respect to the law clerk’s future employer must continue through the remainder of the law clerk’s employment with the judge (see id.).
In matters where a criminal court judge’s law clerk applies to a “large urban district attorney’s appeals bureau,” the Committee has advised that once the judge learns that the district attorney has offered employment to the judge’s court attorney, or if the court attorney and the district attorney are actually negotiating for such a position, the judge “should then act” (Opinion 07-174). The Committee advised that, under these circumstances, the criminal court judge “may either: 1) seek to transfer the court attorney to a civil part; or 2) insulate the court attorney, or at least offer to do so” (id.). As with a prospective private law firm employer, if the trial court judge’s law clerk accepts the offer, this obligation continues through the remainder of the law clerk’s employment with the courts (see id.).
The Committee believes similar principles apply in the appellate context. That is, once the inquiring appellate judge learns that a prospective legal employer has offered employment to the judge's law clerk, or that the law clerk and the prospective legal employer are actually discussing or negotiating for such a position, the judge is obliged to act (see Opinion 07-174; Joint Opinion 07-87/07-95). However, the Committee has previously recognized that "the procedures with respect to disclosure, insulation and disqualification" are different for appellate court judges than for trial court judges (Opinions 14-116; 14-64; 09-111[A]). Accordingly, once an appellate court judge learns a prospective legal employer (whether a private law firm or a public law office) has offered a job to the law clerk or that the law clerk and the prospective legal employer are actually discussing or negotiating for such a position, the law clerk must be internally insulated from any cases of the prospective employer. Provided the appellate court judge observes this restriction, the Committee believes the judge's impartiality cannot reasonably be questioned merely because his/her law clerk is seeking employment with a particular legal employer. Thus, the judge need not sua sponte disclose his/her law clerk's search for post-clerkship employment. Of course, the judge may do so in his/her sole discretion.
The Committee notes, in some instances, the appellate judge’s law clerk may have already prepared a bench memorandum, participated in discussions with the judge or other law clerks, or even researched and written sections of a draft opinion for the judge’s consideration on a particular appeal involving the prospective legal employer, before the insulation went into effect. The judge need not jettison or disregard the work that was previously done, but need only insulate the law clerk from further participation in the matter.
Once the appellate judge’s law clerk accepts the job offer, the duty to insulate the law clerk from cases involving his/her future employer continues until the law clerk’s employment with the courts ends (see Opinion 07-174; Joint Opinion 07-87/07-95).
Discussions End with No Job Offer or Job Offer is Rejected
If after the judge’s law clerk tells the judge that negotiations are on-going with a specific legal employer, the judge learns his/her law clerk will not be joining that employer upon leaving his/her position with the courts,3 the Committee sees no rationale to view such public or private law office as the law clerk’s “prospective employer.” Thus, at this stage, the judge may end the law clerk’s insulation (see Opinion 07-174; Joint Opinion 07-87/07-95). The Committee notes this principle applies equally to trial and appellate judges, and all categories of legal employers.
Disclosure of Internal Insulation in the Appellate Courts
As previously noted, it suffices for an appellate law clerk to be insulated internally from cases involving his/her prospective employers, and an appellate judge need not affirmatively disclose to parties or counsel that he/she has done so. Of course, the judge may, if he/she wishes, explain the process voluntarily and/or in response to questions or concerns expressed by parties or counsel.
______________________
1 In the present economic environment, for example, the Committee appreciates that some job applicants may need to send out hundreds of applications in order to receive a handful of interviews.
2 The Committee believes it is generally helpful for judges if their law clerks keep careful records of each step of their job search, including dates of any direct communications the law clerk has with prospective employers and the names of the attorneys or other individuals the law clerk has met with. This way, a law clerk will be able to provide the judge with any information the judge may require in deciding whether and when to insulate the law clerk. Of course, a law clerk may wish to maintain such records for his/her own independent reasons as well (e.g. in order to follow up with prospective employers in a professional manner).
3 This fact may, of course, become clear in many different ways, both formal and informal. For example, the Committee notes that a law clerk may decline the employer’s job offer; one or both parties may terminate or constructively abandon the discussions or negotiations; or the law clerk may receive a rejection letter (see generally Opinion 07-174; Joint Opinion 07-87/07-95).