Opinion 15-208

December 3, 2015

Digest:         A judge who is disqualified from a case, due to his/her former legal practice, may nonetheless permit his/her unconflicted principal law clerk to conference the case at the request of the presiding judge in the case, provided the disqualified judge does not communicate with the law clerk about the case.

Rules:          22 NYCRR 50.6(a); 22 NYCRR 100.2; 100.2(A); 100.3(C)(2).

Opinion:

         A judge who is disqualified from certain cases due to his/her former legal practice asks if he/she may permit his/her personally appointed principal law clerk to conference those cases, at the request of the presiding judge. The law clerk did not practice law with the judge and shares no bases for disqualification.¹

         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]). A judge must require staff, court officials and others subject to his/her judge’s direction to observe the same standards of fidelity and diligence as the judge (see 22 NYCRR 100.3[C][2]).

         As described, the conflict which requires the judge’s disqualification is personal to the judge; the judge’s personal appointee is entirely unconflicted. The Committee can perceive no possible appearance of impropriety when an unconflicted law clerk conferences cases under the direction and control of an unconflicted judge. Therefore, while the disqualified judge must not participate in these cases, he/she may permit his/her law clerk to assist the assigned judge(s). There is no need for insulation, disclosure or disqualification of the law clerk from such cases, merely because the judge who appointed him/her is disqualified from hearing them. Accordingly, the law clerk may conference such cases if so requested by the presiding judge(s). However, the disqualified judge and his/her law clerk must not discuss the cases with each other.

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              ¹ The law clerk never participated in the judge’s prior legal practice, as he/she was already a full-time court employee (see generally 22 NYCRR 50.6[a] [prohibiting such employees from engaging in the private practice of law]).