Opinion 20-06

January 30, 2020

Digest:         (1) A judge must insulate his/her court clerk from all cases in which the court clerk participated in any way as an attorney, including as a mediator. The judge may preside if he/she can be fair and impartial.

(2) The judge need not otherwise insulate the court clerk from cases involving (a) a party whose divorce the court clerk mediated or (b) a law firm for which the court clerk wrote and published blog posts on various matrimonial law topics in the law firm’s name. The judge may preside in such cases if he/she can be fair and impartial.

(3) If the court clerk wrote an article about a specific pending case before the judge, he/she must insulate the court clerk from the case and can preside if he/she can be fair and impartial.

Rules:          22 NYCRR 100.2; 100.2(A)-(B); 100.3(E)(1); Opinion 16-99.

Opinion:

         A part-time judge’s new court clerk is also a licensed attorney. The clerk previously headed a community dispute resolution center; mediated divorces for the center as an independent contractor; wrote and published monthly blog posts for a local law firm on topics related to the law firm’s matrimonial practice under the law firm’s name; and wrote and published legal articles concerning divorce on third-party web sites. The clerk ceased all these activities before commencing employment with the court. In writing blog posts for the law firm, the court clerk had no involvement with or knowledge of the law firm’s cases or clients. Rather, he/she served as an independent ghostwriter for the firm’s website and social media page, after consulting with members of the firm. The judge now asks about his/her ethical obligations if a case involves the court clerk’s former mediation clients (i.e. a party whose divorce the court clerk mediated) or a law firm for which the court clerk previously wrote blog posts or legal articles.

         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 not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him or herself when the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). In addition, if the judge doubts his/her ability to be fair and impartial in a particular matter, the judge may not preside.

         In Opinion 16-99 (citations and paragraph breaks omitted), we said:

[T]here is clearly no need for the judge to recuse him/herself from a matter based on a chief court clerk’s conflicts. The judge may thus preside without any obligation to disclose or recuse. Still, in the Committee’s view, the chief clerk must be insulated from all matters in which he/she had any involvement as a practicing attorney, regardless of whether they are contested or uncontested in [the judge’s court]. ... However, insulation is not required in other matters involving the chief clerk’s former employer, where the chief clerk had no contact whatsoever with the file, even if such matters were pending at the law firm during the chief clerk’s employment.

         The same principles apply here. Thus, the judge must insulate the court clerk from all cases where he/she was involved as an attorney, including ones in which he/she participated as a mediator, regardless of whether the matters are contested or not (see id.). Once the judge has insulated the court clerk, the judge may preside if he/she can be fair and impartial.

         The judge need not otherwise insulate the court clerk from cases involving a party whose divorce the court clerk mediated or a law firm for which the court clerk wrote and published blog posts on various matrimonial law topics.¹

         Finally, we believe the judge’s impartiality cannot “reasonably be questioned” in any case merely because his/her court clerk wrote and published an article on a particular legal topic while he/she was a private attorney (22 NYCRR 100.3[E][1]). In the very unlikely event that the court clerk published an article about a specific pending or impending case that will come before the judge’s court, the judge should insulate the clerk from any further proceedings in that case.²

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¹ As described, it seems the court clerk was a freelance ghostwriter for the law firm with absolutely no involvement in representing the firm’s clients and no access to confidential information about the representations. If so, we expect the judge will not need to insulate the court clerk from the law firm’s cases.

² The court clerk focused on legal topics that are beyond the jurisdiction of the judge’s court.