Opinion 23-151

December 14, 2023

Digest:  A judge may preside over Article 75 proceedings challenging employment arbitration awards, where the state agency employer was previously represented in-house by the judge’s law clerk’s spouse, but the judge must insulate the law clerk and make appropriate disclosures.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 23-117; 23-96; 22-16; 16-99; 13-26; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          A judge asks if it is ethically permissible to preside over certain Article 75 proceedings challenging employment arbitration awards, where the judge’s law clerk’s spouse, an in-house counsel at a state university, previously represented the employer at the arbitration.  The Attorney General’s office, and not the law clerk’s spouse, will be representing the employer in the proceedings before the judge.

          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]).  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” (22 NYCRR 100.3[E][1]).   However, where disqualification is not required under objective standards, a judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

          Where a member of the judge’s staff has a conflict, it is ordinarily sufficient to insulate the staff member and disclose the situation (see e.g. Opinions 22-16 [where judge’s secretary was formerly married to one party in a custody case and formerly married to an ex-partner of the other party, judge need not disqualify but must insulate the secretary from any involvement in the matter]; 16-99 [chief clerk must be insulated from all matters in which he/she had any involvement as a practicing attorney, whether contested or uncontested]; 13-26 [where attorney represents the judge’s personal appointee, or is the appointee’s fourth-degree relative, the judge must disclose the existence of the relationship when the attorney or their law firm appears and must also disclose that the law clerk will be insulated from all cases involving the attorney or the firm]).  Likewise, although a judge must permanently insulate their law clerk from all matters in which the law clerk had any personal involvement whatsoever as an attorney, we have nonetheless said that a judge “is not automatically disqualified from presiding in a case merely because the judge’s law clerk was personally involved in it during the law clerk’s prior employment” (Opinion 23-96).  Again, if the judge can be fair and impartial, the judge must insulate the law clerk and disclose the insulation and the reason for it (see id.). 

          After insulation and disclosure, disqualification is entirely within the judge’s discretion, even if a party objects, provided the judge can be fair and impartial (see Opinion 22-16 [“the judge ‘is the sole arbiter of recusal’ even if a party objects”]; 16-99 [“should a party request the judge’s disqualification, the judge should consider all relevant factors, but the decision to preside or recuse is solely in the judge’s discretion”]; 13-26 [“If a party objects to the judge’s continued involvement in the case, whether to continue to preside is solely within the judge’s discretion”]).

          Here, too, we conclude the judge’s impartiality cannot “reasonably be questioned” simply because the law clerk’s spouse is employed by a party to the case before the judge and, as in-house counsel to that public sector employer, previously appeared in an earlier stage of the case.  Instead, disclosure and insulation is sufficient (see e.g. Opinions 23-117 [noting that insulation “precludes the law clerk from participating in any way in the proceedings, including conferencing cases, performing substantive legal research, and drafting decisions”]; 23-96).

Accordingly, we conclude the judge may preside over these matters, but must insulate the law clerk and disclose both the insulation and the reason for it.  The decision to preside or recuse remains in the sole discretion of the inquiring judge, notwithstanding a party’s request that the cases be reassigned to avoid any possible appearance of impropriety or conflict of interest.