Opinion 15-172

October 22, 2015

Digest:         A judge whose law clerk is the former District Attorney may continue to preside over cases involving the office, but must insulate the law clerk from cases that arose during his/her former tenure, and disclose the law clerk’s prior position and current insulation.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 14-10; 14-07; 07-216; 07-105/07-119; 93-132; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         This judge plans to hire a former District Attorney as the judge’s law clerk and asks if he/she may then preside in a murder case where the former District Attorney was “deeply involved.”

         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 specifically enumerated circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or law (see generally id.; Judiciary Law § 14). However, if disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).  

         This Committee has advised that a judge need not disqualify him/herself from cases where the judge’s law clerk was the county’s former District Attorney (see Opinion 93-132). Rather, the judge must insulate the law clerk and disclose the law clerk’s prior position and current insulation (see id.). If a party asks the judge to disqualify him/herself following disclosure, the judge should exercise discretion in light of the facts presented (see Opinions 14-07; 07-105/07-119 [suggesting the judge “tak[e] into account matters such as the overall effectiveness of the insulation of the clerk and other relevant circumstances”]).

         Although this judge asks only about a single case in which the law clerk was “deeply involved,” the Committee emphasizes that insulation is required for all cases in which a law clerk was personally involved, either directly or in a supervisory capacity, during his/her former employment, regardless of the extent or depth of the involvement (see e.g. Opinion 07-105/07-119). Indeed, in Opinion 07-105/07-119, where the inquiring judges’ law clerks “previously held a supervisory position in a government law office,” the Committee advised the judges must, with respect to cases involving the law clerks’ former employer:

Insulate their law clerks and disclose the prior employment to all parties unless (a) the law clerk had no direct personal involvement in a matter that comes before the judge and the law clerk’s name does not appear in the papers filed in the matter or (b) the matter is uncontested.

         Here, the law clerk’s former position as the District Attorney necessarily involved him/her in all prosecutions during his/her tenure, as he/she was the attorney of record who bore ultimate responsibility for these cases (see Opinion 07-216 [the District Attorney is the attorney of record and is involved either directly or indirectly in all criminal cases prosecuted in the county]). Therefore, the law clerk must be insulated from “any criminal case that was pending as a prosecution or as a matter under investigation by the District Attorney’s Office during the [law clerk]’s tenure as District Attorney” (Opinion 14-10 [citation and internal quotation marks omitted]), not just those matters in which he/she was “deeply involved” (see also Opinion 93-132).

         Opinion 07-105/07-119 is hereby amended to make clear the distinction, recognized here, between a law clerk who actually headed a government law office and was the attorney of record for all matters arising during his/her tenure, and law clerks who held lesser supervisory positions.