Opinion 23-17
Short-Form Opinion
February 2, 2023
Please Note:
This opinion has been modified in part by Opinion 26-14, which overrules “the final paragraph of the 'Discussion' section.”
With respect to disqualifications in town court based on information acquired while clerking in family court, Opinion 26-14 follows “the more considered guidance of Opinion 19-05” in concluding that “the local judge is disqualified from participating in
any matter involving a litigant who appeared before the judge in his/her capacity as a court attorney in a pre-trial
proceeding in family court, regardless of whether the family court matter is pending or decided,
and the obligation does not expire.” Please see Opinion 26-14 for more details.
Questions: Will the Committee reconsider Opinion 22-131, based on the provided
details of specific assignments as family court chief clerk/court clerk
and town justice in the same county? Is there a time limit on the
insulation and disqualification obligations set forth in Opinion 22-131? Discussion: (A) You ask for reconsideration of whether the full insulation and
disqualification requirements of Opinion 22-131 apply to you, as they
could be burdensome in light of your specific assignments. First, since
your recent appointment to preside in the county’s “busiest and largest
justice court,” you believe there is now a greater likelihood of overlap
in litigants and cases than in the other court(s) where you preside.
Second, you suggest that as compared with those of a court attorney or
law clerk, your superior court duties are largely “ministerial or
administrative” and would not be seen as influencing the superior court
judge’s determinations. Third, your duties as chief clerk/court clerk are
such that you cannot be insulated in superior court from helping a
litigant at the petition window or by telephone, or from processing their
emergency petitions. This challenge arises because you “frequently
clerk in court, answer telephones, wait on litigants at the petition
window and process paperwork in addition to your administrative
duties.” We conclude that Opinion 22-131 continues to apply on the facts
presented, in order to avoid the appearance of impropriety. (B) You ask if there is a time limit on the insulation and disqualification
required by Opinion 22-131. For example, if you have a criminal matter
in town court which requires you to be insulated from a family court
proceeding, does the insulation continue after the criminal matter is
concluded? We conclude the need for insulation in superior court terminates when
the town court matter ends. Enclosed: Opinions 22-131; 20-64; 19-05; 16-43; 99-139
The same approach applies if you acquire information while clerking in
family court which requires your disqualification in town court under
Opinion 22-131. Again, the need for disqualification ends on completion
of the family court matter. Thereafter, disqualification is within your
sole discretion in light of the circumstances presented (cf. Opinion 99-139).