Opinion 25-25

February 6, 2025

Digest: (1) Where a practicing attorney applies for a position as the judge’s law clerk:
(a) The judge need not disclose that an attorney appearing before him/her has applied or been interviewed for a posted position as the judge’s new law clerk, unless and until a job offer is extended to that attorney;
(b) If a job offer is extended to the attorney, the judge must disclose this to all parties in matters where that attorney appears while the offer is pending;
(c) If the offer is rejected, the disclosure obligation ends;
(d) If the offer is accepted, the judge is disqualified in matters where the newly hired law clerk appears before the judge as an attorney. Disqualification on this basis may be subject to remittal if the judge can be fair and impartial.

(2) Once the law clerk commences employment, the judge must insulate him/her from all cases in which the law clerk had any prior involvement as an attorney, no matter how minimal, and must disclose the clerk’s insulation. Insulation on this basis cannot be waived or remitted and does not expire. However, the judge need not insulate the law clerk from other matters involving the law clerk’s former employer or former clients, unless other factors create an appearance of impropriety in a particular case.

Rules: 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); Opinions 21-22(A); 19-110; 19-82; 08-71.

Opinion:

The inquiring family court judge is currently accepting applications to fill a law clerk vacancy. The judge is aware that some applicants are practicing attorneys who may currently represent clients before his/her court. For example, one applicant is a lawyer with a government agency who is handling several pending matters before the judge, including an ongoing trial. The judge asks about his/her ethical obligations throughout the application, interview, and hiring process.

A judge must always avoid the appearance of impropriety (see 22 NYCRR 100.2) and must act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Additionally, a judge shall not allow social or other relationships to influence judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify in any matter where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

In our view, the judge need not disclose that an attorney appearing before him/her has submitted an employment application for a posted position as the judge’s new law clerk and/or has been interviewed for the position. However, if a job offer is extended to that attorney, the judge must disclose to all parties. If the offer is rejected, the disclosure obligation ends. If the offer is accepted, the judge is disqualified in matters where the newly hired clerk appears before the judge in his/her current role, subject to remittal if the judge believes he/she can be fair and impartial (see Opinion 08-71).^{^[1]} Opinion 08-71 further advises that a judge may preside in “cases that have been re-assigned to other” agency staff during this same interim period, but must make full disclosure to all parties (see id.).

Once the new law clerk formally commences employment with the judge, a different line of opinions applies. In Opinion 19-110, we advised that a judge must insulate his/her law clerk from cases in which the law clerk was personally involved during the law clerk’s prior public or private employment and must disclose that insulation to the parties and their attorneys. This insulation requirement cannot be waived or remitted and does not expire (see id.). That decision also indicated that the judge is not required to “insulate the law clerk from other matters involving the law clerk’s former employer or former clients, unless other factors create an appearance of impropriety in a particular case” (id.). It should be noted that even a single court appearance on a matter to cover for a colleague constitutes unwaivable personal involvement as an attorney, which requires permanent disclosure and insulation in that case (see Opinion 19-82).

We therefore conclude that this judge must insulate his/her newly hired law clerk from cases in which the law clerk was personally involved during the law clerk’s prior public or private employment. The judge must disclose the clerk’s insulation to all parties and their attorneys. Insulation cannot be waived or remitted and does not expire. The judge is not required to insulate the law clerk from other matters involving the law clerk’s former employer or former clients, unless other factors create an appearance of impropriety in a particular case.

[1] 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 to 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.).