September 10, 2009
Note: Please review Opinion 13-26 before relying on this opinion, as it has been modified to be consistent with Opinion 13-26.
Digest: (1) A judge whose law clerk is married to a partner in a law firm must disqualify him/herself, subject to remittal, in any case in which a lawyer from that firm appears. (2) Because the inquiring judge believes that he/she can be impartial in cases involving the law clerk’s spouse’s law firm, the judge should not initially arrange to have a court clerk automatically assign the law firm's cases to other judges, as it is not yet known to what extent parties and their lawyers will withhold their consent to remittal. (3) A judge must afford the parties and their lawyers a fair and reasonable opportunity to consult and reach a decision as to remittal of the judge’s disqualification.
Rules: Judiciary Law §212(2)(l); Rules Governing Judicial Conduct, part 100, Preamble; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(F); Opinions 08-126; 07-105/119; 03-30; 99-91 (Vol. XVIII);99-35 (Vol. XVII).
A full-time judge employs two law clerks, one of whom is married to a partner in a large local law firm. While the law clerk’s spouse does not regularly appear in the judge’s court, the other attorneys in the firm do regularly appear. The other law clerk formerly worked for the same law firm, but left the firm’s employ four years ago.
The judge advises that because he/she believed he/she could be fair and impartial when the law firm appeared in the judge’s court, he/she did not disqualify him/herself. However, the judge did insulate the law clerk/spouse from the firm’s cases. Since becoming aware of the Committee’s recent Opinion 08-126, the judge now inquires whether his/her prior practice is still acceptable.
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 any proceeding in which the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
In Opinion 08-126, the Committee advised that a judge must disqualify him/herself, subject to remittal, when the judge's law clerk's spouse or the spouse's partners or associates appear in the judge's court and must insulate the law clerk from all cases in which the spouse's law firm appears (see Opinion 08-1261 ; 22 NYCRR 100.3[E]). Remittal is permitted in such cases "only where the judge discloses on the record the basis of his/her disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge's participation, all agree in writing or on the record that the judge should not be disqualified, and the judge believes that he or she will be impartial and is willing to participate" (Opinion 08-126 citing 22 NYCRR 100.3[F]). Therefore, the inquiring judge must disqualify him/herself, subject to remittal, in all pending and newly assigned cases involving the law clerk’s spouse’s law firm (see Opinion 08-126). However, if the litigants remit the judge’s disqualification, the judge may continue to preside (see 22 NYCRR 100.3[F]).
The judge also asks whether there is “a point at which the lack of requests by the attorneys and the parties for remittal justifies or requires that I advise the Court Clerk to no longer assign cases to me if the law firm of which my law clerk’s spouse is a partner represents a party.” In the Committee’s view, because the inquiring judge believes that he/she can be impartial in cases involving the law clerk’s spouse’s law firm, the judge should not at this point arrange to have a court clerk automatically assign the law firm's cases to other judges, as it is not yet known to what extent parties and their lawyers will withhold their consent to remittal. Rather, the judge should follow the procedures set forth in Opinion 08-126 and 22 NYCRR 100.3(F). If after a period of time it becomes apparent that the inquiring judge will routinely have to disqualify him/herself in cases involving the law clerk’s spouse’s law firm, the judge should consult his/her supervising judge about assigning all future cases involving the law firm to other judges in the court.
The judge also asks whether it is permissible to impose a deadline on parties and their attorneys for making a decision about remittal. While the Rules Governing Judicial Conduct do not directly address this question, the Preamble does provide as follows (22 NYCRR, part 100, Preamble):
The rules governing judicial conduct are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances.
Section 100.3(F) provides for “disclosure on the record [of] the basis of the judge’s disqualification” (22 NYCRR 100.3[F]) so that the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, can consider whether to remit the judge’s disqualification (see id.). In light of the Preamble, it is the Committee’s view that the judge must afford the parties and their lawyers a fair and reasonable opportunity to consult and reach a decision “without participation by the judge” (see id.). Therefore, the propriety of any particular deadline is a legal question or one relating to the dictates of court management, both of which are outside the Committee’s jurisdiction (see Judiciary Law §212[l]). In any event, the parties must affirmatively consent to remittal and the judge must incorporate their agreement to do so in the record of the proceeding (see 22 NYCRR 100.3[F]). If the judge sets a deadline for the parties and their lawyers to request remittal, and the deadline passes without any request for remittal, the judge must exercise recusal so that the case can be assigned to a different judge.
With respect to the judge’s second law clerk, the Committee is of the view that because four years have elapsed since the law clerk’s association with the law firm ended, the law clerk’s former association with the law firm, without more, does not create even an appearance of impropriety (see 22 NYCRR 100.2) or provide reasonable cause to question the judge’s impartiality in cases involving the law firm (see 22 NYCRR 100.2[A]). Therefore, the judge need not disclose the second law clerk's prior employment with the law firm nor insulate him/her from cases involving the law firm, unless the law clerk worked on the particular case during his/her prior employment with the firm (see Joint Opinion 07-105/119; Opinion 99-91 [Vol. XVIII]).
1 Opinion 08-126 overruled prior Opinions 99-35 (Vol. XVII) and 03-30. In the former, the Committee had advised that a judge, whose law clerk is married to the County Attorney, need not recuse him/herself when the County Attorney or attorneys on the County Attorney's staff appear, but should disclose the relationship to all parties and their attorneys and insulate the law clerk from participation in the case. In the latter, the Committee had advised that a judge whose principal court attorney’s spouse is a director of a legal services corporation whose attorneys appear before the judge is not disqualified from presiding in those attorneys’ cases or required to disclose the relationship; but if the court attorney’s spouse was involved in a particular case, the judge must disclose the relationship and obtain the consent of the parties to preside, and the principal court attorney must be insulated from that case.