January 25, 2007
Note: This Opinion has been modified by Joint Opinion 10-107/10-158 (after disclosure, the judge has discretion, based on the facts of the particular case, to grant or deny a party's request that the judge recuse him/herself).
Digest: For a period of one year from the time a law clerk leaves a judge’s employ, the judge should disclose his/her relationship with the former clerk when he/she appears as an attorney before the judge, and recuse upon a party’s request.
Rules: 22 NYCRR 100.2; 100.3(E)(1); Opinions 04-35; 95-58 (Vol. XIII); 88-157 (Vol. III).
The inquiring judge’s law clerk will soon be leaving the judge’s employ to take a position with a law firm. The judge asks what recusal or disclosure responsibilities he/she has, should that law clerk subsequently appear before the judge.
The Rules Governing Judicial Conduct require a judge to avoid the appearance of impropriety and to act, at all times, in a manner that promotes public confidence in the integrity and the impartiality of the judiciary. 22 NYCRR 100.2(A). To further that goal, the Rules also require disqualification of the judge in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1). The relationship between a judge and his/her law clerk is one of particular trust and confidence. Although a judge and his/her law clerk are of course not “partners,” the two engage in the kind of professional interchange that might be found between long-time colleagues in a law firm. Thus, we have determined that our prior opinions - which conclude that appearances by former, more transient staff members, such as research clerks and student interns, did not require recusal or disclosure - do not control the present inquiry. See Opinions 95-58 (Vol. XIII); 88-157 (Vol. III).
Instead, here, we conclude that for a period of one year after the law clerk leaves the judge’s employ, the judge should disclose the former relationship and exercise recusal upon a party’s request, when the former law clerk appears. The judge may also exercise discretion and recuse even in the absence of an application to do so. Opinion 04-35.