Opinion 23-14

February 2, 2023

Digest:         Where the inquiring judge’s current law clerk was previously the longtime law clerk to another judge, who is now “of counsel” to a law firm but will work exclusively with one attorney and never appear in court:
(1) The judge need not disqualify or disclose when the law firm colleagues of the ex-judge appear.

(2) Whether the judge must insulate the law clerk from cases involving other attorneys from that firm is fact-specific, and depends on the nature of the relationship between the law clerk and the attorney who appears.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 22-16; 15-185; 13-26; 12-05; 11-125; 08-98; 04-121.

Opinion:

         An ex-judge from the inquiring judge’s court recently left the bench and became “of counsel” to a law firm in which the ex-judge’s life partner is a member. While the law firm occasionally appears before the inquiring judge, it appears that the ex-judge will never be the attorney of record nor personally appear in court.¹ The inquiring judge has hired the ex-judge’s longtime former law clerk, and asks how to proceed in cases where the ex-judge’s life partner or other members of the law firm appear. In one pending case, for example, the ex-judge’s life partner is appearing as counsel and another senior attorney from the firm is a witness whose credibility the inquiring judge will need to assess.

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]). In particular, a judge shall 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 in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

1. Disqualification of the Judge

         A judge is not automatically disqualified from presiding when a former judge of the same court appears before them (see Opinions 08-98; 04-121). Rather, the currently presiding judge must determine whether their relationship with the former judge is of such a nature that creates an appearance of impropriety or causes their impartiality to reasonably be questioned (see id.; see also Opinion 11-125 [defining three broad categories of social relationships to assist in the analysis]).

         Here, the judge has advised that the ex-judge will not appear in court. Instead, the ex-judge’s life partner or other members of the law firm will appear. Since the judge need not disqualify even if the ex-judge personally appears, we likewise conclude this judge need not disqualify merely because an attorney before them is the life partner and/or law firm colleague of the ex-judge. Assuming the judge can be fair and impartial, and absent some other factor requiring disclosure or disqualification, the judge may preside.²

2. Insulation of the Law Clerk

         When a judge’s “staff member has a conflict, ‘it is ordinarily sufficient to insulate the staff member and disclose the insulation.’ Thus, for example, we have said a judge may preside in matters where the spouse of the judge’s law clerk or secretary appears as counsel, subject to insulation of the court employee and disclosure of the relationship” (Opinion 22-16 [citations omitted]). Here, too, we conclude the judge’s impartiality cannot reasonably be questioned based on their law clerk’s social relationship (if any) with the ex-judge’s life partner or other attorneys from the same law firm.

         The inquiring judge’s law clerk previously served as law clerk to the ex-judge for more than two decades. In that time, the law clerk may have gotten to know the ex-judge’s law partner socially. In our view, whether the judge must disclose the relationship or insulate the law clerk is a fact-specific determination depending on such factors as the nature of the law clerk’s relationship with the attorney, the inter-relationships among their respective immediate family members, the frequency and context of their contacts, and whether they or their respective family members share confidences. Accordingly, in determining whether or not to insulate the law clerk when the ex-judge’s life partner appears, the judge should look to the three broad categories of social relationship set forth in Opinion 11-125 for guidance. We emphasize that, in each instance, should a party object to the judge’s continued involvement, whether to preside remains solely within the judge’s discretion (see Opinion 13-26).      

         Acquaintance Level. In general, an acquaintance-level relationship exists when a judge’s interactions with an attorney outside court “result from happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization,” and they do not socialize together privately (Opinion 11-125). At this level of relationship, a judge need not disqualify or disclose when the attorney acquaintance appears, as long as the judge believes they can be fair and impartial (id.). Moreover, this remains true even if the judge maintains a close social/personal relationship with a member of the attorney’s family (see Opinion 15-185 [referee “need not disclose or recuse from matters involving an attorney who is no more than an acquaintance, merely because the attorney’s sibling is a close personal friend”]). Analogously, if this judge determines that the law clerk and the ex-judge’s life partner are “acquaintances” within the meaning of Opinion 11-125, the judge need not insulate the law clerk or disclose the relationship when the ex-judge’s life partner appears.

         Close Social Relationship. If, on considering the factors and examples set forth in Opinion 11-125, the judge determines that the relationship between the law clerk and the ex-judge’s life partner is a “close social relationship,” the judge should disclose the nature of the relationship but need not insulate the law clerk.

         Close Personal Relationship. If, on considering the factors and examples set forth in Opinion 11-125, the judge determines that the relationship between the law clerk and the ex-judge’s life partner is a “close personal relationship,” the judge must insulate the law clerk and disclose the insulation.

         Likewise, if the law clerk has a social relationship with other attorneys at the ex-judge’s firm, a similar analysis will apply.

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¹ The ex-judge will be working exclusively with their life partner at the law firm, rather than taking on their own independent caseload.

² This applies both to the pending case described in the inquiry, where the ex-judge’s life partner is appearing as counsel and another senior attorney at the firm is appearing as a witness, as well as other cases involving the law firm.