Opinion 23-17

Short-Form Opinion

February 2, 2023

Questions:      Will the Committee reconsider Opinion 22-131, based on the provided details of specific assignments as family court chief clerk/court clerk and town justice in the same county? Is there a time limit on the insulation and disqualification obligations set forth in Opinion 22-131?

Discussion:   (A) You ask for reconsideration of whether the full insulation and disqualification requirements of Opinion 22-131 apply to you, as they could be burdensome in light of your specific assignments. First, since your recent appointment to preside in the county’s “busiest and largest justice court,” you believe there is now a greater likelihood of overlap in litigants and cases than in the other court(s) where you preside. Second, you suggest that as compared with those of a court attorney or law clerk, your superior court duties are largely “ministerial or administrative” and would not be seen as influencing the superior court judge’s determinations. Third, your duties as chief clerk/court clerk are such that you cannot be insulated in superior court from helping a litigant at the petition window or by telephone, or from processing their emergency petitions. This challenge arises because you “frequently clerk in court, answer telephones, wait on litigants at the petition window and process paperwork in addition to your administrative duties.”

We conclude that Opinion 22-131 continues to apply on the facts presented, in order to avoid the appearance of impropriety.

(B) You ask if there is a time limit on the insulation and disqualification required by Opinion 22-131. For example, if you have a criminal matter in town court which requires you to be insulated from a family court proceeding, does the insulation continue after the criminal matter is concluded?

We conclude the need for insulation in superior court terminates when the town court matter ends.

The same approach applies if you acquire information while clerking in family court which requires your disqualification in town court under Opinion 22-131. Again, the need for disqualification ends on completion of the family court matter. Thereafter, disqualification is within your sole discretion in light of the circumstances presented (cf. Opinion 99-139).

Enclosed:     Opinions 22-131; 20-64; 19-05; 16-43; 99-139