Opinion 22-154
October 27, 2022
Digest: (1) A judge whose law clerk was formerly an equity partner at a law firm must insulate the law clerk from all cases in which the law clerk had any involvement whatsoever as an attorney, and must disclose the insulation.
(2) While the law clerk is receiving periodic “vesting payments” from their former law firm for fees generated during the partnership, the judge must make full disclosure in all matters where that law firm appears. After disclosure, the judge may preside if the judge can be fair and impartial, and need not insulate the law clerk solely on the basis of these vesting payments. The obligation to disclose the vesting payments terminates when the payments completely end.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 20-40; 19-110; 19-82; 19-72; 18-37; 15-233; 12-155; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring full-time judge has employed as their confidential law clerk an attorney who was formerly an equity partner in a private law firm. The law clerk now receives periodic “vesting payments” for fees generated while at the law firm. It appears these periodic payments are calculated based on the law clerk’s former role as partner, and are not connected to specific case files. The judge asks for guidance on whether the judge may preside in matters involving the law clerk’s former firm, and if so, whether it is necessary to insulate the law clerk and/or make a disclosure.
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]). A judge must disqualify in any proceeding in which the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).
Where a judge’s staff member has a conflict, “it is ordinarily sufficient to insulate the staff member and disclose the insulation” (Opinion 19-72). Here, too, the facts described do not appear to require the judge’s disqualification in matters involving the law clerk’s former law firm, provided the judge can be fair and impartial. However, the judge must take certain actions with respect to the law clerk.
First, the law clerk must be insulated from cases in which the law clerk had any personal involvement as an attorney, and must disclose that insulation (see Opinions 20-40; 19-110; 12-155). Even minimal involvement requires insulation (see Opinions 20-40 [“any involvement in the case whatsoever as a lawyer, even minimally”]; 19-110 [looking beyond formal assignments to “any involvement with [the case] at all..., including as a supervisor”]; 19-82 [“coverage for a colleague on a single court appearance”]). Insulation on this basis cannot be waived or remitted and does not expire (see Opinions 20-40; 19-110; 15-233). Thus, this obligation continues throughout the law clerk’s employment with the judge, whether or not the law clerk is receiving vesting payments from the law firm.
Second, as these periodic vesting payments constitute an ongoing business or financial connection between the law clerk and their former law firm, we conclude the judge must make full disclosure of this connection in all matters where that law firm appears. After disclosure, the judge may preside if the judge can be fair and impartial, and need not insulate the law clerk solely on the basis of these vesting payments.
The obligation to disclose the vesting payments terminates when the payments cease. In other words, once the vesting payments are entirely completed, neither disclosure nor insulation will be ordinarily required in a case involving the law clerk’s former law firm, provided that the law clerk had absolutely no involvement in that specific case while at the law firm (see Opinions 20-40; 18-37).