Opinion 93-132

December 9, 1993

NOTE: This opinion has been modified by Joint Opinion 07-105/07-119 to the extent it is inconsistent or silent on the topic of recusal.

Digest:         A judge is not required to disqualify himself or herself from cases in which the judge’s law clerk was the district attorney. However, the law clerk cannot participate in those cases, and in such cases it is preferable for the judge to state to the parties that the law clerk previously was involved with the case, and therefore, will not be involved in the matter as a law clerk.

Rules:          22 NYCRR 100.3(C)(1)(I)

Opinion:

         A county judge inquires whether the judge must be disqualified from all cases in which the district attorney was involved, if the judge appoints the district attorney to a position as the judge’s part-time law clerk after the district attorney leaves office.

         Section 100.3(C)(1)(I) of the Rules of the chief Administrator provides, inter alia, that a judge shall disqualify himself or herself from cases in which the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts.

         Since the law clerk is the individual who would have personal knowledge of matters in which he or she was involved as the district attorney, the clerk may not participate in any such case, but the judge may. In such cases, it is preferable that the judge state to the parties that the law clerk previously was involved in the case, and therefore, will have no involvement in the matter before the judge.