Opinion 07-173

October 18, 2007

Digest:         For a one year period after a law clerk leaves a judge’s employ, the judge should disclose his/her relationship with the former law clerk when the former law clerk appears in the judge’s court, and should recuse upon a party’s request. During the same period of time, the judge also should disclose his/her former law clerk’s business association with an attorney who appears in the judge’s court, and should recuse upon a party’s request.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 07-04; 04-35; 90-146 (Vol. VI).

Opinion:

         A judge whose former court attorney resided temporarily in the home of a defense attorney and now practices law with that attorney, asks about the ethical implications when either attorney appears in the judge’s court.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge, therefore, is disqualified in any proceeding where his/her impartiality might reasonably be questioned (see 100.3[E][1]).

         In Opinions 07-04 and 04-35, this Committee advised that for a one year period after a law clerk leaves a judge’s employ, the judge should disclose his/her relationship with the former law clerk when the former law clerk appears in the judge’s court, and should recuse upon a party’s request. The same applies to the judge in the present inquiry when his/her former law clerk appears before him/her.

         In Opinion 90-146 (Vol. VI), this Committee advised that a judge should disclose his/her law clerk’s business association with an attorney appearing in the judge’s court, and preside only upon the parties’ consent. In the Committee’s view, for a period of one year after the law clerk’s employment with the judge ends, a judge should follow the same procedure when, as is the case in the present inquiry, his/her former law clerk’s current law practice associate appears in the judge’s court.