Opinion 15-216

December 3, 2015

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         A town or village justice may permit a part-time court clerk to accept part-time clerical employment with a law firm which will no longer appear in the judge’s court after hiring the court clerk. However, if the law firm does appear, the judge must disclose and insulate the court clerk.

Rules:          22 NYCRR 100.2; 100.2(A)-(C); 100.3(A); 100.3(B)(7); 100.3(E)(1); 100.3(F); Opinions 15-159; 15-52; 08-22; 97-112; 95-77.

Opinion:

         The inquiring town or village justice has both a full-time and a part-time court clerk. The latter works less than 30 hours weekly. The judge asks if he/she may permit the part-timer to accept part-time employment (less than 20 hours per week) with a law firm that has typically appeared in the judge’s court approximately seven times per year. The law firm has stated it will no longer appear in the judge’s court after hiring the court’s part-time clerk.

         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’s judicial duties take priority over all the judge’s other activities (see 22 NYCRR 100.3[A]) and he/she must dispose of all judicial matters promptly, efficiently, and fairly (see 22 NYCRR 100.3[B][7]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge is also disqualified in cases where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         Although the Committee said in Opinion 95-77 that a part-time village court clerk may not accept employment as a part-time receptionist in a law firm that “occasionally” represented clients in the village court, the Committee later adopted a more flexible view. Thus, in Opinion 15-159, the Committee advised that an absolute prohibition was unnecessary when the law firm appears so infrequently that the judge “can take all necessary steps to avoid an appearance of impropriety without undue interference with court operations or the proper performance of judicial duties.”

         The present inquiry includes the law firm’s stated intention to cease representing clients in the judge’s court after hiring the court’s part-time court clerk. With that guarantee, the inquiring judge may permit the requested outside part-time employment (see Opinions 15-159; 95-77).

         Should the law firm nonetheless appear before the court while the concurrent employment is ongoing, the judge must insulate the part-time court clerk from the case and disclose the insulation to all parties and their counsel. The Committee expressly declines to follow Opinion 97-112, which involved a part-time court clerk’s full-time outside employer. Rather, insulation and disclosure is sufficient here, without any disqualification of the judge, because the court clerk “is not a personal appointee” of the inquiring judge and “does not have a full-time ongoing employment relationship” with the law firm (Opinion 15-52). The judge thus need not obtain the parties’ consent. Instead, the judge has full discretion to preside even if a party objects, provided the judge concludes he/she can be fair and impartial. However, because disclosure is mandatory here, if any party appears without counsel, the judge must simply recuse him/herself.

         If the law firm essentially abandons its promise not to appear in the judge’s court, and especially if the appearances become frequent, such as more than five times per year (cf. Opinion 08-22), the inquiring judge should make a further inquiry to the Committee, as there may be additional factors to consider (see 22 NYCRR 100.3[E][1]; 100.3[F]; cf. Opinion 15-159 [discussing the need for disqualification under the specific circumstances presented]).