Opinion 24-189 (Amended)
December 12, 2024
Digest: Where a judge’s law clerk,
in a recently concluded unsuccessful election campaign for District Attorney,
made extremely injudicious campaign statements and repeatedly violated the
public comment rule, resulting in the judge directing the law clerk to take a
leave of absence during the campaign:
(1) The judge’s impartiality cannot reasonably be questioned solely
on this basis and the judge may therefore continue
to preside in criminal cases, provided the judge concludes he/she can be fair
and impartial.
(2) The judge must insulate the law clerk from all criminal cases for two years
and disclose the insulation. After doing so, the judge may preside even if a
party objects.
(3) If the judge concludes that the law clerk’s admitted campaign statements constitute substantial professional misconduct, the judge must take appropriate action, but it is left to the judge’s discretion to determine what action is appropriate under the circumstances.
Rules: Judiciary Law § 14; 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A); 100.3(B)(8); 100.3(D)(2); 100.3(E)(1); Opinions 23-242; 23-96; 22-138; 16-84; 15-212; 13-78; 10-85; 07-11; 07-04; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge’s law clerk ran unsuccessfully for District Attorney in a hotly contested campaign.[1] During the campaign, the law clerk characterized the DA’s office as incompetent and criticized its handling of cases. Among other things, the law clerk commented on certain pending or impending criminal cases that were at some point assigned to the inquiring judge. In one instance, the law clerk commented on news reports of a high-profile local crime which had not yet resulted in a public indictment. The eventual criminal case was assigned to the inquiring judge, who recused after learning of the law clerk’s campaign statements. In another instance, a criminal case the inquiring judge had presided over at an earlier stage was transferred to another judge. When the other judge dismissed the charges, the law clerk commented on the DA’s handling of that case. Thereafter, the inquiring judge directed the law clerk to take a leave of absence for the balance of the campaign.
After the election, the law clerk returned to employment with the judge. The DA’s office is now asking the judge to recuse from all its cases based on the law clerk’s alleged “bias,” illustrated by excerpts from the law clerk’s campaign statements. For example, the law clerk apparently ran an advertisement characterizing an election opponent as a “criminal,” based on a prior arrest on criminal charges, even though the matter was fully disposed by entry of a guilty plea to a non-criminal offense.
The judge is confident in his/her own impartiality and has spoken with the law clerk about the allegations. The law clerk “told [the judge] that the statements were made in the midst of a debate or political campaign and that [the law clerk] can be fair and objective when working on any cases involving this District Attorney’s office.” The judge is satisfied that the law clerk can perform his/her duties properly, but plans to insulate the law clerk from any and all cases the law clerk publicly commented on during the election campaign. The judge asks if he/she may preside in matters involving the DA’s office and if he/she must insulate or terminate the law clerk.
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 require his/her law clerk to abstain from “any public comment” regarding “pending” or “reasonably foreseeable” court proceedings within the United States or its territories (22 NYCRR 100.3[B][8]; 100.0 [U] [“A ‘pending proceeding’ is one that has begun but not yet reached its final disposition.”]; 100.0[V] [“An ‘impending proceeding’ is one that is reasonably foreseeable but has not yet been commenced.”]). A judge must disqualify in any proceeding where the judge’s impartiality “might reasonably be questioned,” including in specifically enumerated circumstances required by rule or law (22 NYCRR 100.3[E][1]; Judiciary Law § 14). Where disqualification is not mandatory, however, the judge is the sole arbiter of recusal, a discretionary decision within the personal conscience of the court (see People v Moreno, 70 NY2d 403, 405 [1987]). In addition, a judge who receives information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must take “appropriate action” (22 NYCRR 100.3[D][2]).
1. Must the Judge Disqualify?
In general, a law clerk’s conflict is not imputed to the judge. For example, we have said 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 (see Opinion 23-96). Rather, if the judge believes he/she can be fair and impartial, the judge must insulate the law clerk “from all matters in which the law clerk had any personal involvement as an attorney” but may thereafter preside (id.). Moreover, a judge’s prior discretionary recusal in one case does not require perpetual disqualification where the recusal was not mandated by the rules or prior opinions (see Opinion 16-84).
We see no reason for a different result where the law clerk’s alleged conflict or bias results from the law clerk’s prior campaign for nonjudicial office—a campaign in which the judge could not in any way participate—even where, as here, the judge required the law clerk to take a leave of absence after repeated violations of the public comment rule (cf. Opinion 15-212 [“Here, it is even less reasonable to question the judge’s impartiality, as these contributions were to the judge’s spouse’s political campaign, in which this judge did not participate.”]). Nothing in the inquiry suggests that the judge authorized, adopted or in any way approved the law clerk’s injudicious campaign comments.
Thus, we conclude the judge need not disqualify in matters involving the District Attorney’s office, provided the judge can be fair and impartial. This is a matter confined expressly to the judge’s sole discretion.
2. Must the Judge Insulate the Law Clerk?
Even where a judge’s law clerk is the DA’s opponent in an upcoming election and the DA has “expressed concern” about the law clerk’s objectivity, we have advised that “[a]s long as the judge is satisfied that the law clerk can remain objective, the judge need not preclude the law clerk from working on cases in which the District Attorney appears” (Opinion 07-11; accord Opinion 13-78).
The facts outlined in the present inquiry, however, distinguish it from our prior opinions. The inquiring judge has apparently determined that the law clerk violated the public comment rule more than once and should be insulated from the specific cases on which the law clerk improperly commented (cf. 22 NYCRR 100.3[B][8] [judge “shall require … court personnel subject to the judge’s direction and control” to abstain from “public comment about a pending or impending proceeding in any court within the United States or its territories”]). Moreover, the inquiring judge was troubled enough, on learning about the law clerk’s campaign conduct, to take immediate action, first voluntarily recusing in a case before him/her and then eventually directing the law clerk to take a leave of absence. The judge has now become aware of additional injudicious statements by the law clerk, including a campaign advertisement characterizing an election opponent as a “criminal” based solely on the non-criminal disposition of a prior arrest.
We recognize that election campaigns for non-judicial office are not subject to the same stringent ethical standards as those for judicial office. However, as a practical matter, when a judge’s personally appointed law clerk runs for non-judicial office, he/she must exercise some discretion and carefully consider the implications of his/her campaign statements if he/she wishes to minimize potential impacts on his/her continued employment with the courts.
Here, the law clerk violated the public comment rule more than once, made multiple injudicious statements during the campaign necessitating a leave of absence, and characterized his/her opponent as a “criminal” notwithstanding the constitutional presumption of innocence.
While we accept the inquiring judge’s assessment that the law clerk is, in fact, capable of performing his/her duties properly, we nonetheless conclude on the extraordinary circumstances described here that the law clerk’s campaign statements create a strong appearance of bias in criminal cases which cannot simply be disregarded in the immediate aftermath of the campaign.
In our view, to maintain public confidence in the judiciary and avoid even the appearance of impropriety, the judge must insulate the law clerk from all criminal matters for two years from the date of the election and disclose the insulation.[2] Once the judge has done so, the judge may preside, assuming he/she can be fair and impartial. We emphasize that the judge retains discretion to preside after insulation and disclosure, even if a party or counsel objects.
3. Must the Judge Terminate the Law Clerk?
As noted in Opinion 23-242, we “have not previously required a judge to terminate a court employee’s employment in the exercise of the judge’s disciplinary obligations under Section 100.3(D)(2), and we decline to do so here.” Still, the judge should carefully consider his/her potential disciplinary obligations with respect to the law clerk. As described in Opinion 23-242 (citations omitted):
The judge must determine whether there is a substantial likelihood that the attorney engaged in the alleged misconduct and, if so, whether that conduct constitutes a substantial violation of the Rules of Professional Conduct, based upon the information available to the judge. A judge is not required to investigate the allegations and may discharge his/her disciplinary responsibilities based on facts known to the judge without further inquiry. In situations such as this, where the inquiring judge has no direct personal knowledge of the facts supporting the allegations, he/she must “evaluate and assess all relevant, known circumstances, including the reliability of the information known to the judge.” A judge may also consider various factors in assessing whether a violation is substantial, including the experience level of the attorney, whether the violation was willful or inadvertent, whether it was part of a pattern of improper behavior, and whether the misconduct is likely to undermine public confidence in attorneys or the judiciary if unaddressed.
If the judge concludes that either prong is not met, the judge need not take any action. Conversely, if the judge, concludes that there is a substantial likelihood that the court attorney has committed a substantial violation, then he/she must take “appropriate action.” The action the judge must take depends on the nature of the misconduct, and is ordinarily left to the judge’s discretion.
As in Opinion 23-242, we emphasize that “[w]here the court attorney has admitted certain allegations which, in the judge’s view, constitute substantial professional misconduct, the judge must take appropriate action; it is for the judge’s sole discretion to determine what action is appropriate under the circumstances.”
Whether such action should include termination is left entirely to the judge’s discretion after considering “all the surrounding circumstances known to the judge, including an assessment of whether the lawyer, if confronted by the judge, shows genuine remorse, contrition, or ignorance of a rule; whether the lawyer has any history of unprofessional or other conduct in violation of the Rules; or any other relevant conduct or factor known to the judge” (Opinion 10-85). In exercising this discretion, the judge should also consider that the relationship between a judge and law clerk is one of “particular trust and confidence” (Opinion 07-04).
[1] We have said a judge “may permit his/her law clerk to oppose the District Attorney in the upcoming election,” subject to certain limitations (Opinion 07-11). For example, the “law clerk may not engage in such political activities in the court house or during the clerk’s working time, and must not give the impression that the judge is engaged in political activities” (id.).
[2] As we noted in another context, “a set period will be simpler for judges to remember and apply, and two years is a standard we have used regularly since the Committee’s inception” (Opinion 22-138).