Opinion 19-169
January 30, 2020
Digest: A full-time city court judge, in his/her capacity as an acting county court judge in a neighboring county, must disqualify, subject to remittal, from any matters in which his/her co-judge’s law clerk represented a defendant at arraignment. The judge has no obligation to take any curative action, including disclosure, with respect to matters that come before the judge in the city court, based on his/her co-judge’s law clerk’s employment as special arraignment counsel in another county.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 19-12; 18-184; 18-62; 18-23/18-56; 16-162; 15-87; 15-58; 14-27; 12-154; 12-45; 10-107/10-158; 09-239; 07-194; 07-87/07-95; 07-04; People v Moreno, 70 NY2d 403 (1987).
Opinion:
A full-time city court judge, who also serves as an acting county court judge in a neighboring county, states that his co-judge’s part-time law clerk1 also serves as the public defender’s special arraignment counsel for the justice courts in that county. As special counsel, the law clerk represents defendants at arraignment and then transfers each case to the public defender’s regular staff; he/she has absolutely no responsibility for or involvement in any further proceedings in these cases. The judge asks about his/her obligations when a case in which his/her city court co-judge’s law clerk was counsel of record at arraignment comes before him/her in county court.
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 previously considered a judge’s recusal obligations with regard to his/her own court attorney, law clerk or former law clerk in various circumstances (see Opinions 19-12; 18-62; 15-58; 14-27; 10-107/10-158; 07-87/07-95; 07-04). In this regard, we have said that a law clerk or court attorney who also serves as a town justice must be insulated from all matters originating in the town court, and the insulation is not subject to waiver or remittal (see Opinions 19-12; 18-184). As to disclosure, we advised that ordinarily, a judge must disclose his/her relationship with his/her former law clerk if he/she appears as an attorney before the judge for one year after the employment ends and that disqualification is required in some matters (see Opinion 18-62). Conversely, we advised that neither disqualification nor disclosure is required when a former law clerk to a retired appellate judge appears as an attorney 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).
Although the present inquiry raises the novel issue of a judge’s obligations with respect to his/her co-judge’s current law clerk in another court, we believe our prior opinions guide our conclusion. For example, we have previously advised that a part-time judge may not participate as a court attorney in appeals from his/her own judgments and decisions (see Opinions 18-23/18-56; 07-194). And, he/she must be insulated as a non-judicial court employee from all matters originating in or appealed from his/her court, even if the matter is handled by a co-judge (see Opinions 19-12; 18-184; cf. Opinion 16-162 [superior court judge is not disqualified in cases originating in or appealed from a city, town or village court just because his/her court attorney presided as a part-time judge in that court, but the judge must insulate the court attorney in all cases arising from the court where his/her court attorney presides and disclose the insulation]).2
Here, the inquiring judge also serves as an acting county court judge in an adjoining county and, in that role, may have occasion to preside over matters in which the attorney who represented a defendant at arraignment is also the co-judge’s law clerk in his home county. In our view, the inquiring judge must disqualify, subject to remittal, from all matters in the county court where his/her co-judge’s law clerk represented a defendant at an arraignment.
For completeness, we also consider whether the inquiring judge must take any curative actions in the city court where his/her co-judge’s law clerk is regularly employed, based on the law clerk’s role as special assignment counsel for the public defender’s office in another county. We can see no ground for disqualification or disclosure on the facts presented, providing the inquiring judge can be fair and impartial.
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1 The law clerk works exclusively for the inquirer’s city court co-judge and does not perform any work, in any capacity, for the inquiring judge.
2 We note that a judge may preside in matters where his/her co-judge’s relative appears as an attorney, provided he/she can be fair and impartial (see e.g. Opinions 15-87; 12-154; 09-239). However, we believe a different analysis applies in matters involving the co-judge’s part-time law clerk. Although the law clerk does not work for the inquiring judge, he/she is nonetheless a professional colleague at the court who has a relationship of “particular trust and confidence” with the inquirer’s co-judge (Opinion 07-04 [noting “the kind of professional interchange that might be found between long-time colleagues in a law firm”]).