April 5, 2010
This responds to your inquiry (10-41) asking whether it is ethically permissible for you to give assignments pursuant to County Law article 18-B to a judge who recently retired from the same court. You further indicate that your current law clerk worked for that judge for ten years.
The Rules Governing Judicial Conduct do not prohibit you from giving 18-B assignments under the circumstances you describe as long as it is legal to do so. However, because your law clerk also served as the retired judge’s law clerk, and for a period of two years after the date the judge retired, you must disclose such employment when the retired judge appears before you, and you must insulate your law clerk from the case. Finally, it is within your discretion to determine whether you can be fair and impartial when the retired judge appears before you.
Enclosed, for your convenience, are Joint Opinion 07-105/119 and Opinion 08-98 which address these issues.
Very truly yours,
George D. Marlow, Associate Justice
Appellate Division, 1st Dep’t (Ret.)