Opinion 15-211

December 3, 2015

Digest:         A judge who formerly served as an assistant district attorney is disqualified from presiding over any matters in which he/she was involved in any way, but may preside over other cases involving that office where he/she had absolutely no involvement. The judge must insulate his/her law clerk from any matters in which the law clerk participated as a prosecuting attorney or supervisor and disclose the law clerk’s prior position and current insulation accordingly.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i); 100.3(F); Opinions 15-172; 14-10; 14-07; 07-216; 07-105/07-119; 07-30; 07-23; 93-132; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge formerly served as an assistant district attorney, and wishes to appoint a supervising assistant district attorney from the same office as his/her law clerk. The judge asks about his/her disclosure and disqualification obligations with respect to that District Attorney’s office in light of the judge’s and his/her prospective law clerk’s former employment. The judge assumes he/she must recuse in matters he/she personally prosecuted or “provided significant legal advice and/or direction to other” assistant district attorneys.

         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]). Thus, a judge must disqualify him/herself in specifically enumerated circumstances as required by rule or law (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]). For example, a judge must disqualify him/herself when the judge knows he/she previously “served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         The scope of a judge’s disqualification obligations due to his/her prior employment in a government law office are determined by the degree of authority he/she exercised there (see Opinion 07-23). Here, the judge had some supervisory duties at the DA’s office, but was not a sufficiently high-ranking official to warrant disqualification in all matters during his/her tenure.¹

         Ordinarily, a former assistant DA is “only barred from adjudicating ‘cases indicted, or begun by an arrest, while the judge was still a member of the district attorney’s staff, ... if the judge in any way participated personally in the cases’” (Opinion 14-10 n 3 [citations omitted; emphasis altered]). Similarly, the Committee has advised that a former assistant corporation counsel who becomes a judge must disqualify him/herself “in any matter in which the judge participated, in any way, personally or in a supervisory capacity,” during his/her tenure (Opinion 07-30 [emphasis added]). The same principles apply here. Contrary to this judge’s assumptions, his/her obligations are not limited to matters where the judge provided “significant legal advice and/or direction.” Indeed, even “minimal” involvement suffices.

         As a result, this judge need not disqualify him/herself from all cases involving the District Attorney’s office, but is disqualified from any matter in which he/she participated in any way, including minimally, as a prosecutor or as a supervising attorney. Disqualification on this basis is not subject to remittal (see 22 NYCRR 100.3[E][1][b][i]; 100.3[F]).

         Disqualification is not required, however, merely because the judge’s law clerk held a supervisory position in the same office (see Opinions 15-172; 14-07; 07-105/07-119; 93-132). Where, as here, the law clerk is a former supervisory attorney in a government law office, the judge must insulate the law clerk when the former employer appears in a proceeding in which the law clerk was personally involved as a prosecutor or supervisor (see Opinion 15-172). Additionally, the judge must disclose the law clerk’s prior position and that the law clerk is insulated (see Opinion 15-172). On a request for recusal, the judge should exercise his/her discretion in light of the facts presented (see id.; Opinion 14-07).

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         ¹ By contrast, “‘a judge who had been the District Attorney should not preside in any criminal case that was pending as a prosecution or as a matter under investigation by the District Attorney’s Office’ during the judge’s tenure as District Attorney” (Opinion 14-10 [citation omitted]). Disqualification, in light of a judge’s former position as the District Attorney, “is required for all such cases charged or investigated during the judge’s prosecutorial tenure” because he/she was the official in charge and is deemed to be directly or indirectly involved in each matter of the office (Opinion 14-10; see also Opinions 15-172; 14-07; 07-216).