Opinion 22-162

December 15, 2022

Digest:       (1) Once a judge’s first-degree non-lawyer relative, a college student, accepts an internship with a private law firm, the judge must disclose the relationship when the law firm appears before the judge and determine whether the relative has or had any involvement with the case. If the relative is or was involved in the case, the judge is disqualified, subject to remittal if the judge’s relative will remain permanently absent from the courtroom. Otherwise, if the relative had no involvement, the judge may preside after disclosure, provided the judge can be fair and impartial.

(2) In the alternative, if the law firm demonstrates to the judge’s satisfaction it has taken steps to ensure the judge’s relative is and will be completely insulated from all of the firm’s cases before the judge, the judge must still make a disclosure when the firm’s lawyers appear, but may otherwise rely on this ethical screen or wall and need not inquire in each instance about the relative’s involvement.

(3) Although the judge may not direct the law firm to assign cases in a particular way, the judge may advise the law firm about the possibility of insulating the judge’s relative.

(4) The judge’s obligations with respect to the law firm end when the relative’s temporary employment relationship with the firm completely terminates.

Rules:        22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1)(e); 100.3(E)(1)(e)(i)-(ii); 100.3(F); 22 NYCRR 1200, Rule 1.11(a)(1); Opinions 22-88; 22-78; 17-71; 16-111; 14-27; 11-139; 11-94; 09-04.

Opinion:

       A judge’s first-degree relative¹ has been offered an internship for the summer and during college breaks with a private law firm. The relative is an undergraduate who aspires to a future legal career. In order to avoid the appearance of impropriety and any “inadvertent information sharing,” the judge proposes to advise the firm and the relative that the relative “cannot work on or participate in work on any case that is assigned to or pending before” the judge, thereby creating an ethical wall or screen.² As this firm regularly appears in the judge’s court, the judge specifically requests guidance to ensure that the internship will not create an appearance of impropriety.

       A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always 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 not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Therefore, a judge must disqualify from any proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge knows that a person within the fourth degree of relationship by blood or marriage is “acting as a lawyer in the proceeding” (22 NYCRR 100.3[E][1][e]).

Internship of Judge’s First-Degree Relative

       We have applied Section 100.3(E)(1)(e) to instances where a judge’s first-degree relative is a legal intern or summer associate (see Opinions 16-111; 09-04). A judge need not object to their relative’s temporary employment with a law firm, merely because the law firm appears before the judge. However, disclosure will be required throughout the internship, and in some instances disqualification. We advised that if a judge’s child is employed temporarily by a law firm, the judge must disclose the child’s position whenever an attorney from that firm appears before the judge (see Opinion 16-111). We further advised that the judge must determine whether the child had any involvement in the matter before the court, and if so, must disqualify him/herself (see id.). Although the disqualification may be subject to remittal (see id.), we clarify that remittal is not possible if the judge’s child “personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][1][e][i]).³ The judge’s determination of the child’s involvement can be based on information provided by the child, without any further inquiry, unless the judge learns otherwise “during the normal course of a proceeding” (see Opinion 11-94 fn 2).

       Here, too, once the judge’s relative accepts the internship with a private law firm, the judge must disclose the relationship when an attorney from the law firm appears before the judge and determine whether the relative has or had any involvement with the case. If the relative had no involvement, the judge may preside after disclosure, provided the judge can be fair and impartial. If the relative is or was involved in the case, the judge is disqualified, subject to remittal if the judge’s relative “remains permanently absent from the courtroom” (22 NYCRR 100.3[E][1][e][ii]). As always, remittal “requires full disclosure on the record of the basis for disqualification and is subject to the voluntary affirmative consent of all parties and, if represented, their counsel” (Opinion 22-88).

Inviting the Law Firm to Create an Ethical Wall or Screen

       The inquiring judge proposes to advise the law firm and the judge’s first-degree relative that the relative “cannot work on or participate in work on any case that is assigned to or pending before” the judge, in order to create an ethical wall or screen between the relative and the law firm’s matters before the judge.

       We note, initially, that the judge may not direct the law firm to assign cases in a particular way (cf. Opinions 17-71 [“a judge should not attempt to intervene in the staffing decisions of an organization”]; 11-139 [advising that a “judge should not ask or direct the Public Defender to assign particular attorneys to, or insulate them from, particular cases”]). However, the judge may advise the law firm about the possibility of insulating the judge’s relative (cf. Opinion 14-27 [a “judge may, in his/her discretion, invite the law firm to create an ethical screen or wall for the [judge’s former] law clerk as provided for in this opinion”]).

       If the law firm chooses to do so and demonstrates to the judge’s satisfaction it has taken steps to ensure the judge’s relative is and will be completely insulated from all of the firm’s cases before the judge, the judge must still make a disclosure when the firm’s lawyers appear, but may otherwise rely on this ethical screen or wall and need not inquire in each instance about the relative’s involvement. Thus, after disclosure, the judge may preside, provided the judge can be fair and impartial.

Duration of the Obligation

       The judge’s obligations end when the relative’s internship with the law firm completely ends (see Opinions 22-78; 11-94).

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¹ For disqualification purposes, a first-degree relative includes a parent or child of either the judge or the judge’s spouse, or the spouse of such person.

² The judge refers to creating a “wall” within the law firm. In lawyer ethics, an “ethical wall” seeks to “protect[] client confidences by preventing one or more lawyers within an organization from participating in any matter involving that client” and thus avoid vicarious disqualification of the entire firm (Black’s Law Dictionary 573 [7th ed 1999]; see also e.g. 22 NYCRR 1200, Rule 1.11[a][1] [describing how a law firm may create an ethical screen]).

³ Sections 100.3(E)(1)(e) and 100.3(F) were amended in 2018, after Opinions 16-111, 11-94, and 09-04 were decided. These amendments limit remittal of disqualification when a judge’s first- or second-degree relative is participating as a lawyer or material witness in the proceeding.