May 25, 2021
This responds to your inquiry (21-42) asking if you may permit your court attorney, a former assistant district attorney, to work on two criminal cases that originated in the District Attorney’s office during the court attorney’s tenure. In one instance, the court attorney made a single appearance in the case, while in the other, the court attorney had absolutely no involvement. You have also asked about your recusal obligations if your court attorney is not permitted to work on these cases.
A judge must insulate their law clerk from all cases in which the law clerk had any personal involvement as an attorney during the law clerk’s prior employment, including in a supervisory capacity; this insulation neither expires, nor may it be waived nor remitted (see e.g. Opinions 19-82; 18-182; 15-233; 15-211). The judge must disclose the law clerk’s insulation and explain its reason, but may thereafter preside, provided the judge can be fair and impartial. On application for recusal, the judge should exercise discretion in light of the facts presented, as the judge is in the best position to determine whether in that particular proceeding the judge’s impartiality might reasonably be questioned. However, the judge ordinarily need not insulate the law clerk from other matters involving the law clerk’s former employer, in which the law clerk had absolutely no involvement.
As your court attorney was not the District Attorney and it does not appear that your court attorney had any supervisory role or position in the District Attorney’s office, the application of these general principles is straightforward here. You must permanently insulate your court attorney from the case in which the court attorney had some involvement (here, a single court appearance) and disclose the insulation. Thereafter, you may preside, if you are satisfied you can be fair and impartial. However, you need not insulate your court attorney or disclose their former employment in the other case, where the court attorney had absolutely no involvement while at the District Attorney’s office.