Opinion 23-72
June 15, 2023
Digest: (1)
Where the judge’s former law student intern has been hired by a local law firm
as a summer associate, and that firm is now appearing before the judge on a
case the former intern worked on during the internship, but has notified all
parties that the former intern will be insulated from the case, the judge may
preside in the case after making full disclosure of the relationship to all
parties on the record.
(2) The judge is not prohibited from speaking to the former intern on non-work
matters during the pendency of the case.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(6); 100.3(B)(8); 100.3(E)(1); 100.3(E)(1)(a)-(f); 22 NYCRR 1200, Rule 1.12(d); Opinions 14-27; 07-04; 95-58; 92-22; 88-157.
Opinion:
The inquiring judge asks two questions relating to a law student who is the judge’s former summer intern but has now secured employment as a summer associate at a law firm that appears before the judge.[1] First, the law firm has a case before the judge that the law student “actually worked on” with the judge during the internship.[2] To avoid disqualification as a matter of attorney ethics, the firm has taken steps to completely screen the law student from the case and has provided written notification to the court and all parties (see 22 NYCRR 1200, Rule 1.12[d]). The judge asks if it is necessary to “disqualify ... or do anything else” as a matter of judicial ethics. Second, while the judge does not regularly socialize with the law student, they have occasionally been in touch about law school credits, summer vacation plans, or the like. Accordingly, the judge asks if it is permissible to speak with the law student “about non-work matters” during their employment with the firm and while the law firm has this or other cases before the judge.
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]). A judge must not allow family, social, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Moreover, a judge must disqualify in a proceeding in which their impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or law (see Judiciary Law § 14; 22 NYCRR 100.3[E][1][a]-[f]). As always, if the judge questions their own ability to be fair and impartial, the judge must not preside.
In general, when a judge’s former law clerk accepts employment with a private law firm, the judge must disclose the relationship for one year from the date the law clerk’s employment with the judge ended, whenever members of that law firm appear before the judge (see Opinion 14-27). We have applied a less restrictive rule with respect to a judge’s former law student intern (cf. Opinion 07-04 [distinguishing between a former law clerk and “more transient staff members, such as research clerks and student interns”]). In particular, we said a judge need not disqualify from a case involving a law firm that hired the judge’s former law student intern, where the intern “did not participate in any way in any aspect of this matter while with the judge” (Opinion 95-58). While less relevant here, we have also advised that a judge may preside in cases in which the judge’s former “student research clerk” represents a party (Opinion 88-157).
Here, the law firm has taken measures to insulate the law student from a case that they worked on during their internship with the judge. These measures are of course intended to ensure that the law firm is not disqualified from the representation, and we assume that the inquiring judge is satisfied that the law firm will completely insulate the law student from the case and has otherwise complied with its obligations under Rule 1.12(d) of the Rules of Professional Conduct.
In our view, the judge nonetheless has an independent obligation under the judicial ethics rules to make full disclosure of the relationship on the record in this case. The law firm’s disclosure does not relieve the judge of this obligation.
However, disclosure of the former internship is not mandatory in other cases in which the law firm appears, provided the law student had no involvement with the case during their internship with the judge (cf. Opinion 95-58).
As for the judge’s second question, we see no ethical impediment for the judge to communicate with their former law student intern on non-work matters, subject to generally applicable limitations on judicial speech and conduct (see e.g. 22 NYCRR 100.3[B][6]; 100.3[B][8]). However, the judge “should exercise discretion and circumspection” in socializing with the law student when their employer has cases before the judge (Opinion 92-22). For example, we advised that “during the course of a trial, on actual trial days, a judge should avoid any private social activity with the attorneys appearing before the judge for one side in the matter” (id.).