April 28, 2009
Digest: An appellate court may engage attorneys, whose prior employers terminated their employment, or recent law school graduates, who are unemployed, to perform work for the court without compensation on a temporary basis. The court must insulate any such attorney assigned to the Law Department from cases involving any law firm or other legal service provider that employed the attorney during the two years immediately preceding the date the attorney begins working for the appellate court; and an appellate judge, to whose chambers an attorney is assigned to work under these circumstances, is disqualified from presiding in any matter involving a law firm or other legal service provider that employed the attorney during such two year period.
Rules: Judiciary Law §212(2)(l); 22 NYCRR 101.1; 100.2; 100.2(A); 100.3(E); Joint Opinion 07-105/07-119; Opinion 09-27; 08-71; 99-91 (Vol. XVII); 99-48 (Vol. XVII).
An appellate court judge asks whether it is ethically permissible for the court to engage attorneys, whose prior employers terminated their employment, or recent law school graduates, who are unemployed, to perform work for the court without compensation, on a temporary basis.1 While they would receive no monetary compensation for their legal services, the attorneys would gain an opportunity to further develop their legal skills and acquire valuable experience that will assist them in transitioning back to paid legal employment. The inquiring judge indicates that the court would solicit resumes from law school career placement offices that maintain contact with alumni and from bar associations and may publish advertisements in the New York Law Journal and bar association newsletters. The judge also advises that the court will not engage any attorney to work for the court if his/her severance arrangement with his/her prior employer is not yet completed. Further, it is the court’s intention to ensure that any attorney so engaged will have no remaining connection with or obligation to his/her prior employer.
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must 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]). Therefore, a judge must disqualify him/herself in a proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
It is the Committee’s view that the appellate court may engage attorneys as proposed by the inquiring judge in either the Law Department or in chambers. However, doing so raises the potential need to disclose the temporary attorney’s prior employment, to insulate the temporary attorney when his/her prior employer appears in the court, and for a judge, if the temporary attorney is assigned to work in a particular judge’s chambers, to disqualify him/herself when the temporary attorney’s prior employer appears in the court.
The Committee previously has addressed these issues when a trial judge hires a law clerk who previously was employed by a law firm or other legal service provider that appears in the judge’s court. In Opinion 09-27, the Committee advised that a judge who hires a law clerk who previously was employed by a private law firm need not disqualify him/herself when the law clerk’s former employer appears if the judge believes he/she can be impartial. However, if the law clerk was involved in the case in which the law clerk’s former law firm appears, the judge must insulate the law clerk and disclose to the parties and their attorneys the law clerk’s prior employment and involvement in the case, and that he/she has insulated the law clerk from any involvement in the case. The judge should exercise his/her discretion in light of the facts presented in determining whether recusal is warranted should a party request it (see Opinion 09-27). The same procedure applies where a law clerk previously was employed by a government law office (see Joint Opinion 07-105/07-119) and where a law clerk previously was employed by Legal Aid (see Opinion 08-71).
While the appellate court judges also must avoid impropriety and the appearance of impropriety when they engage attorneys to work for the court as the inquiring judge proposes, the procedures with respect to disclosure, insulation and disqualification they must follow are different from those the Committee set forth in these prior opinions. With respect to the present inquiry, it is not enough to insulate these attorneys only from those cases with which they were involved during their previous employment. Rather, the court must insulate them from all cases involving any employer for whom these attorneys worked during the two years immediately prior to the date they begin working for the appellate court. Total insulation from such cases is warranted in these circumstances to avoid even the appearance of impropriety (see 22 NYCRR 100.2). While the Court recognizes the difficulty this requirement imposes, it is up to the implementing appellate court to satisfy this requirement. This conclusion applies only to the facts of this inquiry and does not overrule or otherwise change the Committee’s advice in Opinions 09-27, 99-91 (Vol. XVIII) and 99-48 (Vol. XVII).
In addition, disclosure of an attorney’s prior employment to afford the parties an opportunity to seek a judge’s recusal is impractical given the nature of the appellate process. Therefore, it is the Committee’s view that an appellate judge who engages an attorney in his/her chambers as the inquiring judge proposes must disqualify him/herself in all cases involving the attorney’s prior employer(s). While disqualification at the trial court level often results in the need to assign a judge from another court to handle a case, sometimes resulting in significant administrative difficulties, that is not the case in an appellate court. Because several judges preside in appellate court cases, disqualification by one judge generally does not similarly disrupt the court’s operation.
The inquiring judge also asks whether the appellate court may temporarily engage without compensation recent law school graduates who are unemployed. The judge notes that this may be feasible for some unemployed attorneys who have alternative sources of income or support (such as a spouse or relatives). In the Committee’s view, this is permissible, but subject to the same limitations as herein discussed regarding attorneys who have been previously engaged in legal employment.
The Committee surmises that certain administrative issues may arise should the appellate court implement the proposal that is the subject of this inquiry. However, the Committee cannot and does not address any such issues (see Judiciary Law §212 (2) (l); 22 NYCRR 101.1), but instead leaves them to the appellate court and the Office of Court Administration to resolve.
1 This opinion does not address the propriety of a court engaging attorneys on an uncompensated, temporary basis whose employment with law firms or other legal services offices has been deferred and, in some cases, who will be paid a stipend during the period of deferral, as a result of the current economic climate. The Committee, at present, expects this question to be addressed in a subsequent opinion.