Opinion 24-181
December 12, 2024
Digest: A judge whose law clerk leaves to become Chief Assistant to the District Attorney must, for a period of one year, disqualify from all cases where the former law clerk appears, or that are prosecuted under the former law clerk’s supervision as Chief Assistant, subject to remittal.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); 22 NYCRR 1200, Rule 1.12; Opinions 24-164; 21-20; 18-172; 17-19; 16-144; 15-58; 14-27; 10-107/10-158; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge’s law clerk has been offered the position of Chief Assistant to the District Attorney. The Chief Assistant oversees the work of the District Attorney’s office and personally handles some felony matters. The inquiring judge presides over felony criminal matters in his/her court, and asks several questions regarding his/her ethical obligations once the judge’s law clerk becomes the Chief Assistant District Attorney.
A judge must always avoid even the appearance of impropriety and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge must also disqualify him/herself in specific circumstances required by law or rules (see Judiciary Law § 14; 22 NYCRR 100.3[E][1]) and in any proceeding in which the judge’s impartiality might reasonably be questioned (see id.). Where disqualification is not mandatory it remains discretionary, and the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
We have previously advised that, for a period of one year after a judge’s personal law clerk departs service, the judge must disclose the relationship when the former law clerk appears before him/her (see Opinion 10-107/10-158 [modifying previous opinions requiring disqualification]). The judge thereafter has discretion to grant or deny recusal on a case-by-case basis (see id.). If the former law clerk has joined a law firm, the requirement extends to his/her colleagues at the firm, unless the law firm insulates the law clerk from all cases appearing before the judge (see Opinion 14-27).
We have also advised, however, that a judge whose former law clerk becomes the District Attorney—as opposed to an assistant district attorney—must disqualify him/herself from all matters in which the District Attorney’s office appears for a period of one year (see Opinions 15-58; 16-144). This disqualification is subject to remittal (see Opinion 17-19).[1]
We conclude the position of Chief Assistant as described here, with general oversight responsibility for the entire office, is substantially similar to the role of the District Attorney. Accordingly, the inquiring judge must disqualify from all matters under the supervision of the former law clerk as Chief Assistant, subject to remittal, for a period of one year. The judge may continue to preside over any cases not handled or supervised by the former law clerk (cf. Opinions 21-20; 18-172).[2]
[1] We have advised that “remittal of disqualification under Section 100.3(F) is a three-step process that requires the voluntary affirmative consent of the parties and, if represented, their counsel” (Opinion 24-164; 22 NYCRR 100.3[F]).
[2] Such as cases in which the Chief Assistant may not participate due to his/her former employment (see 22 NYCRR 1200, Rule 1.12).