Opinion 21-18

January 28, 2021

Digest:  Once the judge’s law clerk’s first-degree relative retires and terminates their prior business and financial relationship with a law firm, the judge need not insulate the law clerk from new matters involving that law firm, even if the law firm continues to list the name of the retired attorney on its letterhead and website along with the dates of the retired attorney’s service with the firm.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.(E)(1); 22 NYCRR 1200, Rule 7.5(b)(4); Opinions 13-104; 13-26; 11-99.

Opinion:

         The inquiring judge’s law clerk’s first-degree relative¹ was until recently of counsel to a local law firm, and thus the judge has been insulating the law clerk from the law firm’s matters. Toward the end of 2020, the law clerk’s relative retired from the law firm, and will not receive any further financial compensation from the firm. The law clerk’s relative will nonetheless remain on the law firm’s letterhead and website.² The inquiring judge asks if the law clerk may now participate in matters involving the law firm.

         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 NYCRR 100.2[A]). Therefore, 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 in a proceeding where the judge’s 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).

         It appears that the law clerk’s relative has terminated their former business and financial relationship with the law firm and will no longer receive compensation from the firm as of the date of their retirement. We further understand that, if the law firm chooses to list retired attorneys on its letterhead or website, it must also state their dates of service with the firm (see 22 NYCRR 1200, Rule 7.5[b][4]). This requirement will surely minimize the risk of any reasonable public misperception that the law clerk’s relative has an ongoing relationship with the law firm.

         Clearly, the law clerk’s relative is not “likely [to] benefit economically from any fees” earned by the law firm in matters where the law firm was retained after the relative’s departure from the firm (Opinion 11-99). Thus, we see no need for the judge to continue to insulate the law clerk from new matters involving the relative’s former law firm (cf. Opinion 13-26 [declining to impose an insulation requirement for the law clerk’s former attorneys, once the representation is concluded]). The judge also need not make any disclosure in such matters.

         To avoid any possible appearance of impropriety, however, the judge should continue to insulate the law clerk from older matters involving the law firm, i.e. matters where the judge knows the law firm was retained during the law clerk’s relative’s association with the firm (see Opinions 13-104; 13-26; 11-99).

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¹ The law clerk’s first-degree relatives include parents and children of the law clerk and their spouse, and the spouse of such persons.

² As the law clerk’s relative is a former judge, we assume the law firm wishes to highlight the attorney’s prominence in the legal community.