December 1, 2020
We respond to your inquiry (20-130) about insulating your law clerk. For approximately a decade, you have presided in a variety of proceedings involving a particular family. You note the family “is litigious, often commencing new proceedings (modification of custody/visitation, or violation/enforcement proceedings) annually or bi-annually.” Your current law clerk previously had certain connections with that family as an attorney in private practice: (a) he/she served as the attorney of record for one parent in a Family Court proceeding and related Supreme Court enforcement proceedings, each of which reached their “natural conclusion” more than four years ago; (b) his/her client was awarded attorney’s fees from the other parent, which were never paid;1 and (c) the other parent sued the law clerk and his/her client, although the lawsuit was dismissed with prejudice four years ago. On hiring the law clerk, you disclosed the law clerk's prior representation. One parent, who regularly appears without counsel, objected to the law clerk’s participation. Since then, you have insulated the law clerk from all matters involving the family. You note that all the current cases involving this family were filed after the law clerk had ceased practicing law; thus, the law clerk had no personal involvement as an attorney in any of the cases currently before you. Accordingly, you ask if it is mandatory to insulate the law clerk from later-filed court proceedings involving this family, and (if so) for how long.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).
Opinion 18-37 explains the applicable principles as follows (citations omitted and emphasis added):
We have 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. Insulation of the law clerk on this basis cannot be waived or remitted and does not expire. However, the judge need not necessarily 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.
The facts here are truly exceptional. Not only was the law clerk the attorney of record for one parent, but he/she was also awarded attorney’s fees to be paid by the other parent, who never paid them but instead filed a malpractice case against the law clerk. Moreover, the family has been unusually litigious over the past decade; far more so, we believe, than the ordinary Family Court matter.2 While no single factor is determinative here, the unique circumstances described collectively create an appearance of impropriety that require continued insulation of the law clerk in all cases involving this family.
Therefore, on these facts, you must continue to insulate the law clerk from all matters involving this family, and disclose the insulation and the basis for it on the record to all parties. The insulation does not expire.
We enclose Opinion 18-37 for your review.
Very truly yours,
Hon. Margaret Walsh
Justice of the Supreme Court
Hon. Lillian Wan
Acting Justice of the Supreme Court
1 The law clerk believes the judgment was discharged in bankruptcy.
2 In that regard, we also note the non-client parent’s objection to the law clerk’s involvement may suggest his/her subjective perception of the family’s litigations – whether rightly or wrongly – as ongoing and intertwined, even when they technically involve new facts and new issues.