Opinion 18-37

March 29, 2018

Digest:         A judge who learns that a litigant or attorney in a case before him/her was formerly his/her law clerk’s client in an unrelated legal malpractice action may continue to preside in the case, assuming he/she can be fair and impartial, and disclosure is not required. Absent factors creating an appearance of impropriety, the judge need not insulate the law clerk.

Rules:             Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 16-99; 16-54; 16-14; 15-233; 15-43; 14-81; 12-155; 09-27; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge’s law clerk was previously a salaried law firm associate. When defending attorneys in legal malpractice cases, the law clerk often acquired confidential and sensitive information about his/her attorney clients. However, the law clerk’s employment with the law firm completely terminated approximately two years ago, and the law clerk has no financial interest in the malpractice cases or his/her former law firm. The judge asks if he/she may preside in matters involving an attorney who was formerly the law clerk’s client in a malpractice action and whether disclosure is required. The judge also asks, among other things, whether the answer changes if the malpractice action is ongoing or if the attorney is appearing as a litigant.

         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 must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances as required by rule or by law (see generally id.; Judiciary Law § 14). Conversely, where disqualification is not mandatory, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         We have advised that a judge must insulate his/her law clerk from cases in which the law clerk was personally involved during the law clerk’s prior public or private employment and must disclose that insulation to the parties and their attorneys (see Opinions 16-14; 09-27; 12-155; 16-99 fn 2). Insulation of the law clerk on this basis cannot be waived or remitted and does not expire (see Opinions 15-233; 15-43). However, the judge need not necessarily insulate the law clerk from other matters involving the law clerk’s former employer or former clients, unless other factors create an appearance of impropriety in a particular case.

         The key question here is whether the judge’s impartiality might reasonably be questioned merely because the judge knows that his/her law clerk previously defended that attorney in an unrelated malpractice action. We believe it does not. Nor does it even “conceivably create an appearance of impropriety” requiring this judge to disqualify him/herself or make any disclosure (Opinion 14-81). Where, as here, disqualification is not mandated under an objective standard, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]). Thus, provided the judge believes he/she can be fair and impartial, he/she may preside, and neither recusal nor disclosure is required (see Opinion 16-54).

            Further, the judge ordinarily need not insulate the law clerk because even if this law clerk became familiar with a client-attorney’s professional strengths or weaknesses in connection with a malpractice action, such knowledge is unlikely to be relevant in the unrelated case now before the judge and is at least two years out of date in any event. Where, as here, the law clerk has no ongoing business or financial interest in the underlying malpractice case, it does not matter if the malpractice case is concluded or ongoing. Nor does it matter whether the attorney is appearing as a litigant or on behalf of a client.