Opinion 18-62

May 10, 2018

Digest:         A judge may preside in cases where a judicial colleague’s former temporary part-time law clerk appears, provided he/she can be fair and impartial. Disclosure is not required. Under the circumstances, the judge also need not insulate his/her principal court attorney from cases involving the former law clerk, even though the court attorney provided supervision and guidance.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(C); 100.3(E)(1); Opinions 16-114; 16-65; 15-58; 14-81; 14-27; 12-45; 12-05; 10-107/10-158; 07-173; 07-87/07-95; 07-04; People v Moreno, 70 NY2d 403 (1987).

Opinion:  

         The inquiring judge asks if he/she may preside in cases where a particular lawyer appears in 18-B and attorney for child matters. The lawyer recently served as a part-time law clerk to the judge’s judicial colleague for one year. Although the inquiring judge did not engage in substantive discussions with the lawyer, the judge’s principal court attorney provided supervision and guidance, in that he/she “reviewed and assisted the attorney” in his/her work for the other judge, and “discussed procedure and matters of law related to files assigned to” the other judge. Moreover, the lawyer drafted one decision for the inquiring judge, “which was subsequently edited and amended by [the judge’s principal court attorney] for [the judge’s] review and determination.”

         A judge must always avoid an 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 his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14). Conversely, if not mandatory, a trial judge is the sole arbiter of recusal (People v Moreno, 70 NY2d 403 [1987]).

         Ordinarily, a judge must disclose his/her relationship with a former law clerk if he/she appears as attorney before the judge for one year after the employment ends; disqualification is required in some matters (see e.g. Opinions 15-58; 14-27; 10-107/10-158; 07-87/07-95; 07-04).

         Conversely, neither disqualification nor disclosure is required when a former law clerk to a retired appellate judge appears before the appellate court, provided the attorney did not personally participate in the matter and the presiding judges conclude they can be fair and impartial (see Opinion 12-45). We reached this conclusion even though “the working relationship between the [judges] created an opportunity for all the court attorneys to work together on complex issues” (id.). Indeed, we emphasized that when the judges on an appellate panel discuss their cases together in conference with all of their respective law clerks present, “such conferencing does not, without more, transform each appellate law clerk into the personal law clerk of every judge of the court” (id.).

         Here, the inquiring judge did not have a personal or professional relationship with his/her colleague’s temporary part-time law clerk and did not discuss any court files or otherwise engage in any substantive discussions with the law clerk. Thus, we see no reasonable basis to question the judge’s impartiality (see 22 NYCRR 100.3[E][1]). In essence, since the relationship involves another judge’s former law clerk, the inquiring 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 disclosure is not needed (see Opinion 12-45; cf. Opinion 14-81 [neither disqualification nor disclosure is required solely because a party in the matter is the judge’s judicial colleague’s spouse]). Because this judge is not disqualified from presiding in matters involving his/her colleague’s former law clerk, he/she may appoint the lawyer to any 18-B or attorney for the child assignments for which he/she is qualified (see generally Opinion 16-65 [“Since the judge is not disqualified from presiding over cases involving this attorney, the judge may appoint him/her to an appropriate position, where permitted....”]; 22 NYCRR 100.3[C] [a “judge shall exercise the power of appointment impartially and on the basis of merit” and “avoid nepotism and favoritism”]).

         Finally, we believe the judge need not insulate his/her principal court attorney from matters involving the former temporary part-time law clerk. Significantly, the judge’s principal court attorney had no business or financial relationship with the lawyer (cf. Opinion 16-114 [noting that “such public employment involves no common financial or business interests”]) and was not subject to his/her supervision (cf. Opinions 12-05 [judge who is a former law clerk is disqualified, subject to remittal, when his/her former supervising judge appears as an attorney]). On these facts, we believe the principal court attorney’s impartiality cannot reasonably be questioned when the lawyer appears, merely because he/she provided supervision and guidance while the lawyer was serving as another judge’s temporary part-time law clerk.