Opinion 17-122

September 7, 2017

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 full-time judge may permit his/her law clerk to serve on a local zoning board of appeals. The judge may preside in cases involving the ZBA, provided the law clerk is insulated from those cases and the insulation is disclosed on the record to all parties and their counsel. Because this disclosure is mandated in lieu of disqualification, if a party is appearing without counsel, the judge must disqualify him/herself.

Rules:          22 NYCRR Part 50; 100.2; 100.2(A); 100.3(C)(2); 100.3(E)(1); 100.6(A); Opinions 16-162; 13-133; 11-41; 08-105; 01-35; 00-108; 99-10; 97-17; 94-34; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A full-time judge asks if he/she may permit his/her law clerk to serve on a local municipality’s zoning board of appeals. The ZBA “hears applications for use and area variances and interprets the [Municipal] Code in accordance with” applicable provisions of state law. The judge advises that “[a]pplicants who consider themselves aggrieved may appeal to” the judge’s court.

         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]). A judge also must require his/her staff to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]). Nevertheless, the limitations on a judge’s extrajudicial conduct do not automatically apply to the judge’s law clerk (see e.g. Opinions 00-108; 97-17).¹

         Thus, a judge need not prohibit his/her law clerk from serving on a local municipality’s ethics board (see Opinion 08-105), town council (see Opinion 01-35), or a public school board (see Opinion 99-10).

         Here, we likewise conclude the Rules Governing Judicial Conduct do not preclude the law clerk from serving on a local municipality’s ZBA.²

         Although the judge offers to “recuse from any ... appeals from a determination of the [ZBA],” we believe it unnecessary if the judge can be fair and impartial and all parties have counsel. Rather, if the case involves the ZBA, he/she must insulate the law clerk from the case and disclose the insulation and reason for it (see Opinions 16-162; 94-34). Thereafter, he/she may preside unless he/she doubts his/her own ability to be fair and impartial (see Opinion 16-162; 22 NYCRR 100.3[E][1]; People v Moreno, 70 NY2d 403 [1987] [where disqualification is not mandated, the judge “is the sole arbiter of recusal”]). But, since this disclosure is mandated in lieu of disqualification, if a party is unrepresented, the judge must recuse (see Opinion 16-162).

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¹ A different result applies when a law clerk has a quasi-judicial title or functions, such as court attorney-referee or Small Claims Assessment Review hearing officer (see e.g. Opinions 13-133; 11-41; 22 NYCRR 100.6[A]).

² We address only the judge’s obligations under the Rules Governing Judicial Conduct. The law clerk may contact the Nonjudicial Ethics Helpline (1-888-283-8442) for guidance on his/her independent obligations under the Rules Governing Conduct of Nonjudicial Court Employees (22 NYCRR Part 50).