Opinion 25-06(B)

February 6, 2025

Digest:   (1) A new judge may hire a law student who previously interned at the judge’s prior law firm as a judicial intern. 
(2) If, while the judge is already under an obligation to disqualify in matters involving the law firm, the judge wishes to provide an opportunity for remittal of disqualification, the judge may disclose both his/her own prior connection to the firm and the judicial intern’s, and allow the parties and their counsel to consider whether or not they wish to remit the judge’s disqualification.  However, if the judge learns that the intern was personally involved with a matter at the law firm, the intern should be insulated from that matter, and such insulation cannot be waived or remitted. 

Rules:    Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(C)(2); 100.3(E)(1); 100.3(F); 100.4(A)(1)-(3); Opinions 22-181; 21-22(A); 20-40; 19-82; 18-118; 18-46; 16-36; 14-48; 13-80.

Opinion:

          A new full-time judge asks if he/she may permit a law student who previously interned at the judge’s former law firm to serve as an intern in the judge’s chambers.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote 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 require the judge’s staff to observe the standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).  Further, the judge must disqualify from any proceeding in which the judge’s impartiality “might reasonably be questioned” (see 22 NYCRR 100.3[E][1]), including where expressly required by rule or law (see e.g. Judiciary Law § 14).

          Preliminarily, we note that judges are disqualified from presiding in any case involving their prior law firm or its attorney(s) until two years have passed after the completion of any financial relationship between the judge and the law firm (see e.g. Opinions 18-118; 18-46; 16-36; 22 NYCRR 100.3[E][1]).  Assuming the judge can be fair and impartial, the disqualification is subject to remittal after full disclosure on the record (see Opinion 18-118; 22 NYCRR 100.3[F]).  As noted in Opinion 21-22(A), where a judge has a disqualifying conflict, it is not the parties’ burden to request the judge’s disqualification.  Rather, it is the judge’s burden to disqualify him/herself at the outset, even if the parties are fully aware of the conflict and do not express any concern (see id.).  Moreover, where remittal is available, it is a multi-step process which likewise puts the burden on the judge (1) to make full disclosure of the basis for disqualification on the record and (2) not preside unless the parties and their counsel freely and affirmatively consent to waive the conflict, as specified in Section 100.3(F) and our prior opinions (see id.).  A mere failure to object is insufficient (see id.).

          Turning now to the question at hand, the decision whether to engage a student intern is within the discretion of the judge and does not generally raise ethical concerns.  Indeed, where the internship is unpaid, we have advised that the anti-nepotism rule does not apply (see Opinion 14-48 [judge may hire third-degree relative as unpaid intern]).  Where a conflict arises in a particular case due to the intern’s outside activities or relationships, it is ordinarily sufficient to disclose the connection and insulate the intern (see e.g. Opinions 22-181; 13-80). 

          In our view, the inquiring judge may hire a law student who previously interned at the judge’s prior law firm as a judicial intern.  

          One unusual factor here is that this new judge proposes to hire an intern from his/her former law firm, while the judge is already disqualified from hearing matters involving that law firm.  During this period, the judge may, of course, simply disqualify in matters where the law firm appears.  Should the judge wish to provide an opportunity for remittal of disqualification, however, the judge may disclose both his/her own prior connection to the firm and the judicial intern’s, and allow the parties and their counsel to consider whether or not they wish to remit the judge’s disqualification.  However, if the judge learns that the intern was personally involved with a matter at the law firm, the intern’s insulation from that particular matter cannot be waived or remitted (cf. Opinions 20-40; 19-82).