Opinion 16-138

September 8, 2016

Digest:         A judge who wishes to hire a new personal appointee law clerk may circulate the job notice through a bar association, specialized bar association committees, and attorneys who serve on those committees. The judge may also ask these attorneys to circulate the job notice within their law firms. There is no need for disqualification or disclosure merely because an attorney appearing before the judge, or his/her spouse, agrees to circulate a job notice for the judge.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 16-54; 11-125; 08-153; 07-126; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge who wishes to appoint a new law clerk asks if he/she may circulate the job notice through a local bar association, specialized bar association committees, and the attorneys who serve on those committees, and whether he/she may ask such attorneys to circulate the job notice within their law firms. The judge notes that some prospective applicants and/or their law firms may have cases currently pending before the judge. Moreover, at least one attorney who is willing to circulate the job notice is married to another lawyer whose law firm currently has a matter pending before the judge.

         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 any case where the judge’s impartiality may reasonably be questioned (see 22 NYCRR 100.3[E][1]), or in any circumstance required by rule or law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law §14). If disqualification is not mandated under these objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         It surely benefits the judge, the court system, and the administration of justice when a judge is able to hire well-qualified persons from the public or private sector as his/her personal appointees. Therefore, absent a specific circumstantial conflict, there is no appearance of impropriety when a judge circulates a job notice to private law firms, government offices, private and public sector entities, and/or the general public. In the Committee’s view, such networking activities are so routine and commonplace that they cannot cause a judge’s impartiality to “reasonably be questioned” (see 22 NYCRR 100.3[E][1]). Accordingly, there is no need for disqualification or disclosure merely because an attorney appearing before the judge, or his/her spouse, has agreed to circulate a job notice for the judge.¹ As always, the judge may nonetheless, in his/her sole discretion, disclose such connections as a purely prophylactic measure without incurring any further obligation (see Opinion 16-54).

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         ¹ If a judge asks a particular attorney to circulate the job notice based on their social relationship, he/she should look to Opinion 11-125 for guidance on analyzing that relationship. Joint service on a bar association committee, without more, typically results in a cordial acquaintance-level relationship that does not require disclosure or disqualification (see Opinions 11-125; 08-153; 07-126).