Opinion 15-233

January 28, 2016

Digest:         A judge must insulate his/her law clerk from all cases in which the clerk was personally involved as a non-supervisory staff attorney, even if the case will end by consent, default, or dismissal. That insulation neither expires, nor may it be waived nor remitted.

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); Opinions 15-172; 15-43;12-155; 08-71; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A Family Court judge asks if his/her future law clerk, who presently serves as a staff attorney at a legal aid society, must be insulated from all cases he/she handled as an attorney for the child. The judge states legal aid staff attorneys are assigned to a particular courtroom on a rotating basis, so unresolved cases are handed off to another staff attorney at the end of the rotation. The future law clerk was assigned to the judge’s court two of the past five years. If the law clerk must be insulated, the judge asks how long insulation is required, and if the parties may remit or waive the insulation. The judge also asks if a different standard applies if a case to which the law clerk had been assigned as a legal aid attorney is being resolved by consent, default, or dismissal.

         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 any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including in specifically enumerated circumstances required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). For example, a judge must disqualify him/herself when “the judge knows that ... the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]). Conversely, where disqualification is not mandatory, a judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         A judge is not automatically disqualified from presiding in a case wherein the judge’s law clerk was personally involved during his/her prior employment (see Opinions 15-172; 15-43; 12-155; 08-71). Rather, if the judge believes he/she can be fair and impartial, the judge must insulate the law clerk from all matters in which the law clerk was personally involved and disclose the insulation and reason for it (see id.). Further, no lapse of time affects the judge’s requirement to insulate his/her law clerk from matters in which the law clerk was personally involved, and insulation may not be waived or remitted (see Opinion 15-43). However, the judge need not insulate the law clerk from all matters involving his/her former employer; where the law clerk held no supervisory role in such former employment and had no personal involvement in the case whatsoever, and the law clerk’s name does not appear in any filed papers, no disclosure or insulation is required (see id.).

         The Committee believes the law clerk must be insulated from all cases previously assigned to him/her as a legal aid attorney, even if the judge believes the case will be resolved by consent, default, or dismissal. Thus, the judge must insulate the law clerk from all matters in which he/she was personally involved, without regard to the disposition or lapse of time, and disclose such insulation and the basis for it (see Opinions 15-43; 08-71). Disqualification is in the judge’s sole discretion.

         Of course, if the judge questions his/her own impartiality in a particular case, he/she must not preside.