Opinion 23-96
September 7, 2023
Digest: A judge must insulate their law clerk from all matters in which the law clerk had any personal involvement as an attorney, but need not disqualify, provided the judge believes the judge can be fair and impartial.
Rules: Judiciary Law §§ 14; 212(2)(l); 212(2)(l)(iv); 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 101.1; Opinions 21-105; 21-42; 15-233; 15-43; 08-71; People v Moreno, 70 NY2d 403 (1987).
Opinion:
The inquiring judge presided over a criminal case that resulted in a conviction and the defendant has moved to vacate the judgment. Both sides have asked the judge to recuse on the basis of an alleged conflict of interest or appearance of impropriety arising from the judge’s recent hiring of a former assistant district attorney as a law clerk. During their former employment with the DA’s office, the law clerk conducted legal research on this specific case, which was incorporated in the People’s opposition to the defendant’s currently pending motion to vacate. The inquiring judge is confident that they can be fair and impartial in the matter, and is willing and able to insulate the law clerk from any involvement in the case (including the motion to vacate, the hearing on the issue, and the written decision). The judge asks if recusal is nonetheless required.
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 (see 22 NYCRR 100.3[E][1]), including in specifically enumerated circumstances required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Where disqualification is not mandatory, however, the judge is the sole arbiter of recusal, a discretionary decision within the personal conscience of the court (see People v Moreno, 70 NY2d 403, 405 [1987]).
A judge is not automatically disqualified from presiding in a case merely because the judge’s law clerk was personally involved in it during the law clerk’s prior employment (see Opinions 15-233; 15-43; 08-71). Rather, if, as here, the judge believes they can be fair and impartial, the judge must insulate the law clerk from all matters in which the law clerk was personally involved and disclose the insulation and the reason for it (see id.). No lapse of time affects the requirement that the law clerk be insulated from all matters in which they were personally involved to any extent, and the insulation may not be waived or remitted (see Opinions 15-233; 15-43), even where the law clerk’s involvement in the matter consisted of only a single court appearance (see Opinion 21-42).
Accordingly, on the facts presented, we conclude the judge must fully and permanently insulate their law clerk from this case and disclose the insulation, but may thereafter preside as long as the judge can be fair and impartial.
As always, we cannot comment on any legal questions (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]; Opinion 21-105).[1]
[1] Our enabling statute provides that “[a]ctions of any judge or justice of the [unified] court system taken in accordance with findings or recommendations contained in an advisory opinion issued by the panel shall be presumed proper for the purposes of any subsequent investigation by the state commission on judicial conduct” (Judiciary Law § 212[2][l][iv]).