Opinion 23-117
October 26, 2023
Digest: (1) Once a judge’s law clerk’s spouse becomes the Public Defender, the judge (a) must completely insulate the law clerk from all cases involving the PD’s office, (b) must disclose both the relationship and the insulation, and (c) may thereafter preside in the matter, provided the judge can be fair and impartial, even if a party objects. (2) Insulation means that the law clerk will not participate at all in matters involving the PD’s office, including by conferencing cases, performing substantive legal research, and drafting decisions.
Rules: 22 NYCRR 100.2; 100.2(A);100.3(E)(1); Opinions 21-39; 17-120; 16-30; 14-174; 13-104; 13-26; 11-151; 08-126; 90-130; 88-140.
Opinion:
The spouse of the inquiring judge’s law clerk[1] is under consideration to be the head public defender in the county where the judge presides. The judge asks what to do if the law clerk’s spouse becomes the Public Defender, given that the PD’s office regularly appears before the judge on criminal and family court matters. In particular, the judge asks if the law clerk would still be able to conference family court cases and assist the judge with legal research and decision-writing in criminal cases.
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]). Therefore, judges must disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). If the judge has any doubts concerning his/her impartiality, the judge should not preside in the matter (see Opinion 88-140).
A judge’s impartiality cannot “reasonably be questioned” merely because an attorney appearing before the judge is the spouse or other family member within the fourth degree of relationship of the law clerk’s relative, or a colleague of the law clerk’s relative (see e.g. Opinions 21-39; 14-174; 13-26). However, the judge must insulate the law clerk to the extent required by prior opinions and make appropriate disclosures (see id.).
Where the law clerk’s attorney/relative is in private practice, the judge’s insulation and disclosure obligation extends to the relative’s partners and associates (see e.g. Opinions 21-39; 14-174; 13-104). Conversely, if the attorney/relative appears on behalf of a public law office, the judge’s obligation is ordinarily “limited to only those cases where the attorney actually appears or has had some involvement” in the case, whether directly or as a supervisor (see Opinions 21-39; 11-151 [as modified by Opinion 13-26]; 08-126 [as modified by Opinion 13-26]).
Here, the law clerk’s spouse is contemplating becoming the head of the Public Defender’s office. The Public Defender is considered the attorney “of record on all matters involving his/her office, and presumably has supervisory authority over the assistant public defenders who appear on his/her behalf” (Opinion 16-30). Thus, the judge must insulate the law clerk from all cases involving the PD’s office once the law clerk’s spouse becomes “the” PD (see Opinion 08-126 [as modified by Opinion 13-26]).
Insulation precludes the law clerk from participating in any way in the proceedings, including conferencing cases, performing substantive legal research, and drafting decisions (see e.g. Opinions 90-130 [insulated court clerk should “be instructed to avoid any contact with the case, its files or documents, and should not appear in the courtroom while the clerk’s attorney-spouse appears”]; 17-120 [insulated court clerk “must not attempt to access these case files except in the same time, place and manner as other similarly situated members of the public who are not court employees”]).
[1] The inquiring judge uses the term “law assistant,” which we understand to mean either a court attorney or law clerk.