Opinion 23-208

February 1, 2024

Digest:  Where a retired judge’s former law clerk worked for the inquiring judge in a limited capacity for four months before returning to private practice, the judge need not disclose or disqualify in matters involving the retired judge’s former law clerk.  The judge may also appoint the former law clerk as attorney for the child.

Rules:   22 NYCRR 100.2; 100.2(A)-(B); 100.3(C)(3); 100.3(E)(1); Opinions 18-62; 15-58; 14-27; 12-45; 10-107/10-158; 08-107; 07-04.

Opinion:

          The inquiring judge supervised another judge’s law clerk for four months after the other judge’s retirement.  During that time, the law clerk reviewed uncontested divorces and prepared them for the inquiring judge’s review and signature.  The law clerk has since returned to private practice, is eligible to receive assignments as the state-paid attorney for the child, and has extensive experience in that role.  The judge asks about his/her obligations with respect to the former law clerk, and especially whether the judge may assign the former law clerk as attorney for the child.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Thus, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).  A judge also must exercise the power of appointment “impartially and on the basis of merit,” and avoid favoritism (22 NYCRR 100.3[C][3]).

          The relationship between a judge and a personal law clerk is one of “particular trust and confidence,” which involves generally “the kind of professional interchange that might be found between long-time colleagues in a law firm” (Opinion 07-04).  Thus, we have advised that for a period of one year after a law clerk leaves the judge’s court employment, a judge “must disclose to all parties his/her former employment relationship with the former law clerk [and] has the discretion to grant or deny a party’s request that he/she recuse him/herself based on the facts in the particular case” (Opinion 10-107/10-158; see also Opinion 14-27). 

          Conversely, we have advised that even disclosure is not required when a former law clerk to a retired appellate judge appears before the appellate court, provided the former law clerk did not personally participate in the matter and the presiding judges conclude they can be fair and impartial (see Opinion 12-45).  While “judges on an appellate panel may discuss their cases together in conference with all of their respective law clerks present” and therefore appellate judges may be familiar with a retired colleague’s former law clerk, we concluded “such conferencing does not, without more, transform each appellate law clerk into the personal law clerk of every judge of the court” (id.).

          Here, we see no reasonable basis to question this judge’s impartiality, as the relationship involves another judge’s former law clerk, who worked for the judge for only four months with a limited scope of responsibilities (cf. Opinion 18-62 [judicial colleague’s former temporary part-time law clerk]).  We conclude the judge may preside, and need not make any disclosure, provided the judge determines he/she can be fair and impartial (see Opinions 18-62; 12-45).  That determination is left to the inquiring judge’s sole discretion.

          Since the judge is not disqualified in matters involving the former law clerk, the judge may also appoint him/her to attorney for the child assignments for which he/she is qualified (see 22 NYCRR 100.3[C][3]; Opinions 18-62; 10-107/10-158).