September 10, 2015
Digest: A town justice may consent to the appointment of his/her first-degree relative as town court clerk and permit his/her relative to continue full-time clerical employment with a private law firm that appears in the court twice a year, provided the town justice disqualifies him/herself from all matters involving the relative’s law firm employer.
Rules: 22 NYCRR 8.1; 100.0(C); 100.2; 100.2(A)-(C); 100.3(A); 100.3(B)(7); 100.3(C)(3); 100.3(E)(1); 100.3(E)(1)(d)(iii); 100.3(F); Opinions 15-39; 14-64; 12-105; 10-192; 08-22; 06-111; 99-87; 95-77; 91-125; 89-142.
A town justice who has received, or wishes to apply for, administrative approval to hire a first-degree relative1 as town court clerk pursuant to Rule 100.3(C)(3)2 states the relative is currently employed in a clerical capacity by a local law firm in a nearby municipality. The relative’s law firm duties include “answering the phone, scheduling appointments, answering emails, typing, filing, making appointment reminder calls, and running errands to the post office and city hall.” The firm handles vehicle and traffic and criminal defense cases and its attorneys occasionally appear as counsel in the inquiring judge’s court, “perhaps twice a year.” The judge, who is currently the sole judge of the court, asks whether it is ethically permissible for the judge’s relative to serve as court clerk and simultaneously continue his/her full-time employment with the law firm.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties take priority over all the judge’s other activities (see 22 NYCRR 100.3[A]) and he/she must dispose of all judicial matters promptly, efficiently, and fairly (see 22 NYCRR 100.3[B]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must not convey or permit others to convey the impression they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A judge also must disqualify him/herself in cases where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]), including when the judge knows a relative within the sixth degree of relationship by blood or marriage has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][d][iii]).
By way of background to the present inquiry, the Committee has generally advised that a judge is disqualified, subject to remittal, when a private law firm that employs the judge’s spouse, first-degree relative, or second-degree relative appears before the judge (see e.g. Opinions 06-111 [law firm where judge’s sibling is a partner]; 99-87 [law firm that employs judge’s spouse in a paralegal/clerical position]; 91-125 [law firm that employs judge’s daughter-in-law]; cf. Opinion 12-105 [judge is disqualified, subject to remittal, when the manufactured home park that employs the judge’s child appears in the judge’s court as a party]; but see Opinion 10-192 [reaching a different result under the specific circumstances presented]). Accordingly, the Committee notes that the inquiring judge is already required to disqualify him/herself from the law firm’s cases on the rare instances when the law firm appears in the judge’s court, unless all parties and their counsel remit the judge’s disqualification on the record following full disclosure of the basis for disqualification (see 22 NYCRR 100.3[F]; see also e.g. Opinion 15-39 [describing the three-step remittal process]).
The Committee also previously advised that a village justice may not consent to the village court clerk’s proposed outside employment as a receptionist in a local law firm within the village, “where the attorneys employed by the firm occasionally represent clients in the village court” (Opinion 95-77). The Committee reasoned:
The appearance of propriety would be severely compromised if the receptionist of “X” law firm is also the court clerk. It would appear to the public that one might have an advantage with the court if one retained “X” law firm; that the law firm was in a special position to influence the justice (id.).
On further consideration, however, the Committee believes that an absolute prohibition of such concurrent employment on the part of a justice court clerk is unnecessary, provided that the law firm appears so infrequently in the justice court that the judge can take all necessary steps to avoid an appearance of impropriety without undue interference with court operations or the proper performance of judicial duties. Accordingly, Opinion 95-77 is modified in accordance with the present opinion.
Under all the circumstances presented, including that the law firm appears in the judge’s court fewer than five times per year (cf. Opinion 08-22 [suggesting that a law office which handles “fewer than five [cases] annually” in the judge’s court appears “extremely infrequently”]), the Committee concludes that the inquiring town justice may consent to the appointment of his/her first-degree relative as town court clerk, provided that the town justice disqualifies him/herself from all matters involving the relative’s law firm employer (see 22 NYCRR 100.3[E]). However, if the resulting disqualifications become significantly more frequent or otherwise interfere with the judge’s ability to perform his/her judicial duties, then the judge must instruct his/her relative either to discontinue employment with the law firm or resign as court clerk.
1 A relative within the first degree of relationship by blood or marriage includes a child, step-child, parent, or step-parent (see Opinion 14-64 n 1; cf. 22 NYCRR 100.0[C]).
2 Although the Rules Governing Judicial Conduct strictly limit a judge’s ability to appoint relatives within the fourth degree of relationship by blood or marriage, “[n]othing in this paragraph shall prohibit appointment of the spouse of the town or village justice, or other member of such justice's household, as clerk of the town or village court in which such justice sits, provided that the justice obtains the prior approval of the Chief Administrator of the Courts, which may be given upon a showing of good cause” (22 NYCRR 100.3[C]; Opinion 89-142). Part 8 of the Rules of the Chief Judge is not to the contrary, as it applies to appointive positions “in any state-paid court of the Unified Court System” (22 NYCRR 8.1 [emphasis added]).