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Digest: A judge is not disqualified from presiding in matters involving the District Attorney’s office merely because his/her law clerk is a former assistant district attorney and the law clerk’s second-degree relative is currently an assistant district attorney. However, the judge must insulate the law clerk from (a) cases in which the law clerk had any personal involvement as a lawyer and (b) cases in which the law clerk’s second-degree relative appears and disclose the circumstances, including that the law clerk is insulated.

Rules: Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 15-233; 15-172; 15-43; 15-18; 13-26; 12-155; 07-105/07-119; 93-132; People v Moreno, 70 NY2d 403 (1987).

A supervising or administrative judge asks if a judge subject to his/her supervision may preside in matters involving the District Attorney’s office, where the judge’s law clerk is a former assistant district attorney and the law clerk’s second-degree relative is a current assistant district attorney.¹

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]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) or in other instances specifically mandated by rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Where disqualification is not mandatory, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403,505 [1987]).

This Committee has advised that a judge need not disqualify him/herself from all cases involving the District Attorney’s office solely because the judge’s law clerk previously held a position in that office (see Opinions 15-172; 15-43). Rather, if the judge believes he/she can be fair and impartial, the judge may continue to preside over cases involving the office provided the judge insulates the law clerk from all cases in which the law clerk was personally involved, either directly or in a supervisory capacity (see Opinions 15-172; 12-155; 07-105/07-119; 93-132). The judge must also disclose the law clerk’s prior position, his/her exposure to the matter and the current insulation (see id.). Conversely, the Committee has advised that neither disclosure nor insulation is required where the law clerk held no supervisory role at the government law office, had no personal involvement with a case and the law clerk’s name does not appear on the papers (see Opinions 15-233; 15-43). Insulation of the law clerk from a case based on his/her prior involvement in that case as a lawyer does not expire and may not, under any circumstance, be waived or remitted (see Opinions 15-233; 15-43).

Similarly, the Committee has advised that a judge need not disqualify him/herself when an attorney who is a fourth-degree relative of the judge’s law clerk appears before the judge (see Opinion 13-26). Assuming the judge believes he/she can be fair and impartial, the judge may preside, providing the judge insulates his/her law clerk from the matter and discloses the relationship and the insulation to the parties (see id.).

Accordingly, this judge may preside in matters involving the District Attorney’s office, assuming he/she can be fair and impartial, but the law clerk must be insulated from (a) cases in which the law clerk had any personal involvement as a lawyer and (b) cases in which the law clerk’s second-degree relative appears. The judge must also disclose the law clerk’s insulation and the reason for it. If, after disclosure, a party objects to the judge’s participation, disqualification is in the judge’s sole discretion (see Opinions 15-43; 13-26).

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¹Relatives within the second degree of relationship include parents, grandparents, siblings, children, and grandchildren (see Opinion 15-18 n 1; cf. 22 NYCRR 100.0[C]). When analyzing disqualification requirements, the Committee does not distinguish between relatives by blood or by marriage (see e.g. Opinion 15-18 n 1).