January 30, 2020
Digest: (1) A judge is not disqualified from presiding in matters involving the District Attorney’s office merely because the law clerk’s second-degree relative is an assistant district attorney. However, the judge must insulate the law clerk in all cases in which the law clerk’s relative appears.
(2) The judge need not ask if law clerk’s relative had some behind-the-scenes involvement in a particular case, where the relative does not personally appear and is not listed on the papers.
(3) On these facts, the judge need not take any disciplinary action.
(4) Provided no party is appearing without counsel, the law clerk’s insulation in matters involving his/her relative may be remitted, after full disclosure on the record, if the parties and their counsel affirmatively consent and their agreement is incorporated into the record, and the judge is satisfied the law clerk can be fair and impartial. The judge may take steps to expedite the remittal process, consistent with these principles.
Rules: Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(D)(2); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(e)(i); 100.3(F); Opinions 17-153; 16-166; 16-67; 15-43; 15-18; 13-26; People v Moreno, 70 NY2d 403 (1987).
A judge asks if he/she may preside in matters involving a District Attorney’s office that employs the law clerk’s second-degree relative by blood or marriage as an assistant district attorney.1 In an abundance of caution, the judge has hitherto disqualified him/herself, subject to remittal, in all cases involving the law clerk’s relative and directed the DA, by letter, to advise him/her of any matters in which the law clerk’s relative was involved. The DA has declined to cooperate.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]) or in other instances specifically mandated by rule or statute (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14). Where disqualification is not mandatory, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 ).
We have said a judge need not disqualify him/herself when an attorney who is a fourth-degree relative of the judge’s law clerk appears before the judge (see Opinion 13-26). To the contrary, assuming the judge believes he/she can be fair and impartial, the judge may preside, providing the judge insulates his/her law clerk from the matter and discloses the relationship and the insulation to the parties (see Opinion 16-166).
Accordingly, this judge may preside in matters involving the District Attorney’s office, assuming he/she can be fair and impartial, but the law clerk must be insulated from cases in which the law clerk’s second-degree relative appears in person or is listed as an involved ADA on the papers. The judge must also disclose the law clerk’s insulation and the reason for it. If, after disclosure, a party objects to the judge’s participation, disqualification is in the judge’s sole discretion (see Opinions 15-43; 13-26; 16-166). As insulation and disclosure is mandated in lieu of outright disqualification, however, if a party is appearing without counsel, the judge must simply disqualify him/herself.
We now turn to the judge’s specific questions, to the extent not already addressed.
1. No Duty to Inquire
The judge need not inquire in every proceeding involving the DA’s office whether or not the law clerk’s relative, who is not otherwise appearing in the matter, and whose participation is not evident on the face of the papers, had some behind-the-scenes involvement. Rather, the judge may permit the law clerk to participate in the proceeding without disclosure or insulation, unless and until the judge learns that the law clerk’s relative is, in fact, participating in the proceeding.
2. No Disciplinary Obligations
On these facts, we believe the judge has not received information indicating a “substantial likelihood” of a “substantial violation” of the Rules of Professional Conduct by the DA or his/her subordinates (22 NYCRR 100.3[D]). Therefore, the judge need not take any action under Section 100.3(D)(2).
3. Waiver/Remittal of the Law Clerk’s Insulation
A law clerk’s insulation may be subject to waiver or remittal in certain circumstances, by analogy to Section 100.3(F) (see Opinion 17-153). Here, we believe the law clerk’s insulation from matters in which his/her second-degree relative is involved may be remitted, provided no party is appearing without counsel. The judge must make full disclosure of the basis for the law clerk’s insulation on the record. If the parties and their counsel, without participation by the judge, affirmatively consent to remit or waive the law clerk’s insulation, and the judge is satisfied the law clerk will be fair and impartial, the judge may accept the remittal of insulation and incorporate such remittal into the record. Thereafter, the judge may permit the law clerk to participate in the case.2
Moreover, the judge may, if he/she chooses, adopt a procedure to expedite waiver of the law clerk’s insulation in matters when institutional attorneys or other “repeat players” are involved, again provided no party is appearing without counsel and the system, at a minimum, involves full disclosure of the basis for disqualification and affirmative consent by all parties and their attorneys (see Opinion 16-67; 22 NYCRR 100.3[F]). Both the disclosure and the remittal must be incorporated into the record (id.).
1 Relatives within the second degree include parents, grandparents, siblings, children, and grandchildren, whether by blood or by marriage (see Opinion 15-18 n 1; cf. 22 NYCRR 100.0[C]).
2 By contrast, a judge’s disqualification in matters where his/her own second-degree by blood or marriage personally appears in the courtroom, or is likely to do so, is not subject to remittal (see 22 NYCRR 100.3[E][e][i]; 100.3[F]).