Joint Opinion 07-105/07-119
April 24, 2008
Digest: A judge whose law clerk formerly worked for a government law office may preside when his/her law clerk’s former employer appears in a proceeding, but should insulate the law clerk and disclose the prior employment when the law clerk was personally involved in the case. Where the law clerk held a supervisory position with the government law office, the judge need not insulate the law clerk when the law clerk’s former employer appears in a proceeding if (a) the law clerk had no direct personal involvement in the matter and the law clerk’s name is not included in the papers, or (b) the matter is uncontested. Upon application for recusal, the judge should exercise discretion in light of the facts presented.
Rule: 22 NYCRR 100.2; 100.3(E)(1); Opinions 07-30; 06-110; 02-112; 00-66 (Vol. XIX); Opinion 99-139 (Vol. XVIII); 99-91 (Vol. XVIII); 99-48 (Vol. XVII); 99-11 (Vol. XVII); 96-125 (Vol. XV); 93-132 (Vol. XI); 91-152 (Vol. VIII).
Two judges have appointed attorneys to serve as their law clerks who previously worked for government law offices that regularly appear before the judges. Each judge asks about any ethical implications resulting from his/her law clerk’s prior employment.
This Committee previously has concluded that a judge need not exercise recusal simply because his/her law clerk’s former employer appears before the judge (see Opinions 02-112; 00-66 [Vol. XIX]; 99-48 [Vol. XVII]; 93-132 [Vol. XI]). And, where a judge’s law clerk previously was employed by a private law firm, the Committee has advised that, during the first two years of the law clerk’s employment, the judge should disclose his/her law clerk’s previous employment when the law firm appears, and insulate the law clerk from all cases involving the law firm (see Opinion 99-91 [Vol. XVIII]; 99-48 [Vol. XVII]). Where a judge’s law clerk previously was employed by a district attorney’s office, however, the judge need only insulate the law clerk from matters in which he/she was personally involved (see Opinions 00-66 [Vol. XIX]; 93-132 [Vol. XI]).
In the present inquiry, both law clerks performed work for their prior employers commensurate with that of a more senior employee. One law clerk was a supervising attorney while the other law clerk reviewed files to determine whether his/her employer should file an application or petition. In prior opinions, this Committee has concluded that a judge who was employed by a government law office in a supervisory capacity should recuse from any cases that were pending at the time the judge was so employed (see Opinion 07-30 [judge who served in a supervisory capacity for corporation counsel’s office prior to assuming bench should recuse from any matter in which he/she had personal or supervisory involvement]; 99-11 [Vol. XVII] [judge who had been a high-ranking deputy county attorney should not preside over matters pending at time judge was employed by county]).
However, if a judge were required to insulate a law clerk who previously worked in a supervisory capacity for a government law office from all cases involving that office for a period of time after the law clerk’s prior employment ended, the judge would face unnecessary administrative burdens and, in some instances, the judge might not be able to hire a highly experienced attorney as his/her law clerk. The Committee notes that in the context of a large, urban government law office, a law clerk might have supervised dozens of attorneys who performed the office’s day-to-day work, and the law office may appear daily in the judge’s court. We also note the qualitative difference between the appearance of impropriety created by a judge’s prior involvement in a government law office’s work and that of a law clerk.
Under these circumstances, we decline to apply the same broad rule concerning insulation of a law clerk who previously held a supervisory position in a government law office as we have applied that rule in the past to judges who previously held such positions. Thus, assuming they can be impartial, the judges in the present inquiry need not disqualify themselves and may continue to preside when the government law offices that previously employed the judges’ law clerks appear in the judges’ courts (see 22 NYCRR 100.3[E]). The judges should, however, insulate their law clerks and disclose the prior employment to all parties unless (a) the law clerk had no direct personal involvement in a matter that comes before the judge and the law clerk’s name does not appear in the papers filed in the matter or (b) the matter is uncontested. This should avoid any undue burden on the courts involved and also protect against even the appearance of impropriety (see 22 NYCRR 100.2).
Upon application for recusal after disclosure of the law clerk’s prior employment and current insulation, a judge should exercise discretion in light of the facts presented on a case-by-case basis (Opinion 99-139 [Vol. XVIII]). The judge is in the best position to assess whether in that particular proceeding “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E]), taking into account matters such as the overall effectiveness of the insulation of the clerk and other relevant circumstances. The Committee hereby modifies its prior opinions to the extent they are inconsistent with this result or silent on the topic of recusal (Opinions 06-110; 02-112; 00-66 [Vol. XIX]; 99-91 [Vol. XVIII]; 99-48 [Vol. XVII]; 96-125 [Vol. XV]; 93-132 [Vol. XI]; 91-152 [Vol. VIII]).