Opinion 21-122
September 9, 2021
Digest: Where an attorney recently provided brief and preliminary legal advice to the judge’s law clerk’s child, the judge may preside in unrelated matters where the attorney appears without disclosure or insulation of the law clerk.
Rules: Judiciary Law § 14; 22 NYCRR 100.1; 100.2; 100.2(A); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 21-21; 20-156; 19-91; 16-30; 14-102; 14-51; 13-26; 09-188; 08-165; 08-02/08-45; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge requests guidance on their ethical obligations with respect to an attorney the judge previously appointed as a referee in foreclosure. Recently, the judge learned that the attorney provided legal advice to the judge’s law clerk’s child. In a single session, the attorney briefly reviewed the paperwork and advised the law clerk’s child to pursue criminal charges rather than file a civil lawsuit. The attorney did not request compensation and had no further involvement in the law clerk’s child’s matter.
A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), must avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Further, a judge must disqualify in a proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where required by specific rule or statute (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). However, where disqualification is not mandated, a trial judge is the sole arbiter of whether recusal is warranted. It is a discretionary decision “within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).
When an attorney is representing the judge’s law clerk, we have said the judge need not disqualify from other matters in which that attorney or law firm appears (see e.g. Opinions 21-21; 13-26). Rather, the judge must insulate the law clerk from such matters and disclose both the insulation and the underlying reason (see id.).
Here, however, we believe the circumstances described are too attenuated to require insulation of the law clerk. Significantly, we have said a judge’s impartiality cannot be “reasonably questioned” where an attorney’s representation of the judge or the judge’s relative was “brief and preliminary” (e.g. Opinions 20-156 [where the judge’s consultation with an attorney about the judge’s possible medical malpractice case “proves to be brief and preliminary in nature, the judge may continue to preside over cases in which the attorney appears, and we see no need for disqualification or disclosure merely because the judge has sought brief and preliminary guidance”]; 19-91 [provided the judge’s consultation with an attorney about a Medicaid application and home care planning is “brief and preliminary in nature and the judge concludes he/she can be completely fair and impartial, the judge need not make any disclosure”]; 16-30 [no obligation where attorney prepared and filed a short, non-substantive response to a judicial disciplinary complaint and engaged in five non-substantive telephone and email communications with the judge]; 14-51 [no obligation where an assistant public defender was briefly assigned to represent the judge’s relative on appeal but “performed no substantive work” and was soon discharged in favor of a private attorney]). We also applied a similar analysis where an attorney “was briefly appointed as Attorney for the Child” in a custody proceeding where the judge’s first-degree relative was a party (Opinion 14-102) and when an attorney who initially prosecuted the judge’s child “quickly was replaced as prosecutor” by another attorney from outside the county (Opinion 08-165). We concluded in both instances that the attorney’s brief and preliminary involvement in the judge’s relative’s legal proceeding could not raise reasonable questions about the judge’s impartiality, and thus the judge could preside (see Opinions 14-102; 08-165).
We believe the same principles should apply here. Accordingly, neither insulation nor disclosure is required due solely to the attorney’s brief and preliminary representation of the judge’s law clerk’s child. The judge thus may continue to preside in matters where the attorney appears without disclosure or insulation of the law clerk and has no ethical obligation to replace the attorney on pending foreclosure proceedings.1 Moreover, the judge may continue to appoint the attorney to positions for which they are eligible, provided the judge does so impartially and based on merit (see 22 NYCRR 100.3[C][3]).
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1 Where disqualification is required under Section 100.3(E)(1), it involves disqualification of the judge, not removal of the attorney. As we have recognized, a judge’s authority to bar an attorney from appearing before the judge or to remove an attorney from a case is ordinarily a legal question, rather than an ethical one (see Opinions 09-188; 08-02/08-45).