Opinion 97-112

October 16, 1997

Digest:         In circumstances where there is more than one Court Clerk and the court determines that insulating the Court Clerk from involvement in a limited number of cases is practicable, the court may preside over proceedings in which one of the litigants is represented by a law firm that also employs the court’s part-time Court Clerk, if the judge determines that he/she can remain impartial. The judge must disclose the clerk’s employment relationship on the record, obtain the written consent of the parties to the judge’s continued participation and insulate the Court Clerk from any involvement in those matters.

Rules:          22 NYCRR 100.3 (E) and (F), Opinions 90-33 (Vol V); 90-68 (Vol V); 90-146;93-21 (Vol XI); 93-38 (Vol XI); 93-132 (Vol XI); 94-34 (Vol XII); 97-07

Opinion:

         A Town Justice inquires about the propriety of presiding over proceedings in which one of the litigants is represented by a law firm that also employs the court’s part-time Court Clerk. The judge also asks if the Court Clerk may be used as a Spanish interpreter in arraignments on an emergency basis.

         This Committee has previously held that a judge must disqualify himself/ herself in any proceeding handled by a law firm which employs the court’s part-time Court Clerk. Opinion 90-68 (Vol V). In the instant inquiry, however, the judge informs the Committee that there is more than one Court Clerk serving in the court and it would not be burdensome to insulate this Court Clerk from participation in any proceeding involving the law firm employing the Court Clerk.

         Based upon these additional factors, the Committee has reviewed its holding in Opinion 90-68 (Vol V) and now determines that in circumstances where there are multiple Court Clerks and the court concludes that insulating the Court Clerk from involvement in a limited number of cases is practicable, the court may preside over such proceedings, if the judge believes that he/she can remain impartial. The judge must disclose the clerk’s employment relationship on the record, obtain the written consent of the parties to the judge’s continued participation and insulate the Court Clerk from any involvement in those matters. 22 NYCRR 100.3 (E) and (F). This procedure would be consistent with the procedures authorized by this Committee in opinions involving relationships between Law Clerks and Court Attorneys serving in the court and others involved in proceedings before the court. See e.g., Opinions 90-33(Vol V), 90-146 (Vol VI), 93-21 (Vol. XI), 93-38 (Vol. XI), 93-132 (Vol XI), 94-34 (Vol XII) 97-07.

         Regarding the use of the Court Clerk as an interpreter, the authority of the committee is limited to the considerations of questions of judicial ethics. The inquiry does not raise such a question but, rather, raises a question of law or Unified Court System policy. Accordingly, we cannot provide an answer to this inquiry.